20100430 TZHC Dar es Salaam

...· IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM · CRIMINAL APPEAL CASE NO. 11 OF 2009 (Original Case No. 367 of 2007 in the District Court of Morogoro) MBARAKA NJINJA ................................................... APPELLANTS VERSUS REPUBLIC .............. :............................................................. RESPONDENT 22/3/2010 and 30/04/2010 JUDGMENT E.G. Mbise, J The Appellant, MABARAKA NJINJA was charged with robbery with violence c/s 285 and 286 of the Penal Code Cap 16 Vol. l of the Laws. At the end of the trial, the trial court convicted the appellant and sentenced him to 15 years imprisonment. The particulars of the offence are that on l 5th day of May, 2007 at about 22.30 hrs at Ngerengere within District and Morogoro Region the appellant did steal one mobile phone make Nokia 621 0 valued at Tshs 460,000/= property of ZEPHANIA S/O ASSECHEK and before such stealing he did use violence to the said ZEPHANIA by biting him on the neck in order to obtain the said property. The appellant pleaded not guilty to the charge. The prosecution side called five witnesses to support their charge. The adduced evidence ' is to the effects that on the material date the PW l, ZEPHANIA S/O 1 ,i. ASSECHEK was at Hunters Bar - Ngerengere taking a drink. The accused person, MABARAKA NJINJA was also there taking drinks. The accused went to the PW 2, KASSIM KUM WAGA, who had a lighter in order to light his cigarette. The lighter was red in colour and it had a torch. The accused did not return this lighter to PW 2 but left with it. As the PW 1 was paying his bills at the counter, the accused person left. Having paid the bill, the complaint walked towards his house. When PW 1 was about to enter his home which is about 20 steps from the bar, his wife alerted him that he should be careful as there were two people hidden in the bushes. The PW 4 had seen those people when she was going to the kitchen to add charcoal in her coke. At first she saw a blue light and this is what made her to notice that there were people near their house. The PW 4 was just in the window watching. Before the PW 4 had finished telling her husband about those people, one of the two persons who were described by PW 4 as tall and who was identified by PW 1 as the accused person because he was in the same clothes he was at the bar, invaded PW 1 held his neck and took away the PW 1s Cell phone which he had bought in Arusha at Tshs.460, 000/=. The PW 1 got bruises in his neck and the prosecution tendered the PF3 which shows that the PW 1 had bruises on his neck. The PF 3 was admitted and marked as exhibit P2. At the scene the PW I lost his spectators. On this very night the accused after he had attacked the PW 1 and left, came back with PW 3 at the scene. The PW 3 was asked by the accused to escort him in the premises of the PW 1 when they went there the accused searched for something in the grasses then he picked a cell phone. The accused gave the cell phone to the PW 3 but the following morning the accused went to take it claiming that he had got someone to buy it. The PW 3 told the 2 ·• trial court that the cell phone was NOKIA 6210 model. The PW 3 asked the accused as to how his phone came to be found in the premises of the PW 1 but the accused had no a direct answer. The PW 1 reported the matter to the Police station. In the next morning the PW 4 went to the scene. There she picked a lighter and spectator case. The PW 4 gave the two things to his husband (The PW 1) who went to the police station with the lighter. The PW 5 went with this lighter to the hunters bar where he was told the owner was PW 3 but also the accused was seen with it. The PW 5 sought for PW 3 who admitted that the lighter belongs to him but that night he gave it to the accused person. The accused left with it and on being asked the following morning the accused could not tell where it was. He only said that the lighter got lost. So the prosecution case in summary ,s that the accused was identified by the PW 1 and that lighter which was in possession of the accused person was found in the scene. The lighter was tendered as an exhibit and marked as exhibit P. I. Another testimony is that the accused was seen with the cell phone which he gave to the PW 3 and went to collect it the following morning. In his defence the accused denied the whole of the prosecution evidence except that on the material night he was at Hunters Bar up to 0000 hrs when he left for his home. The appellant having been dissatisfied by conviction and sentence of 15 years imprisonment has appealed against both conviction and sentence on the grounds which may be summarized as follows: 1. The trial magistrate erred in law and in fact in grounding conviction on the appellant based on identification, at the scene of the crime by the complainants. 3 2. That the trial magistrate erred in law and fact in convicting the appellant relying on the PF 3 tendered in court without calling the medical doctor who alleged to have examined the victim for cross examination as required by law under section 240(3) of CPA. 3. That the trial magistrate failed to evaluate the defense tendered. 4. That the appellant prays the court to allow the appeal, quash the conviction and set aside the sentence. During the hearing of the appeal, the appellant adopted the reasons filed in the memorandum of appeal and insisted that he did not commit the offence.The Appellant had the following additional grounds of appeal. That evidence of identification by PW 1, PW 2, PW 3, and PW 4 failed to prove that there was light or not, what time did the act take, distance between complainant and the appellant and whether they knew each other before taking into consideration the fact that it was during the night time. He further submitted that he was not arrested with anything relating to the offence. Also he submitted that the complainant did not show any marks or signs to describe the appellant. Respondent was represented by Ms LILIAN RWEGIMBURA, Learned State Attorney. She grouped her reply in 3 groups; 1. Identification 1st ground and additional grounds. 2. No doctor was called section 240 93) CPA 3. Defence evidence was not considered. 4. PF 3, marks, or not arrested with anything. 4 In the first ground of appeal, the appellant stated that the trial magistrate erred in grounding conviction of the appellant based on identification. That the complainant did not describe the appellant. The Learned State Attorney submitted that Evidence by PW l, PW 2, PW 3, PW 4 show that they knew the appellant before the event. There was no reason to describe him. She cited the case of RAYMOND FRANK V R 1994 TLR l 00 where the Court of Appeal said that since the victim described to have seen the appellant for the first time that day it was necessary to describe him. This shows that description is important only when the appellant has been seen for the first time. In this case the appellant was known as Mgambo. Identification was not only based on the identification at the scene but also cigarette lighter. PW 2 saw red lighter with blue light. PW 4 testified that he saw blue light at the scene. PW 4 said that he had given appellant the lighter but it was not returned. Identification of the appellant is by evidence of PW 3. The appellant took PW 3 at the scene where they found a Nokia telephone. This telephone belonged to PW l . In additional grounds, whether there was light or not and time taken by the event, Ms. RWEGIMBURA submitted that PW l and PW 2 were with appellant at Hunters Bar for a long time. At that bar there was light and he asked PW 2 for cigarette lighter then. PW l said that the appellant had on the same clothes and there were security lights in front of the house. They were at the Hunters bar for a long time and he identified him by security light. The question of distance is not relevant. He was closer to the complainant. In the case of R V RUNBULL AND OTHERS ( 197 6) 3 ALL ER 549, the court set conditions for identification: 5 . · As to how long did the witness have the accused under the observation, Ms. RWEGIMBURA said that the complainant was at the Hunter's bar for nearly 3hrs. He was known to him. It was easy to identify him. Another question is at what distance. It was submitted that In this case they sat closer by at the bar and since he attacked him they were very close. As regards the question in what light, it was submitted that in the present case, there was security lights in front of PW l's house and there was enough light. On the question whether observation was impended in any way either by passing traffic or any event, she submitted that in the present case, there was no such evidence. Regarding whether the witness had ever seen the accused before, Ms. RWEGIMBURA said that PW l knew the accused, he was Mgambo PW 2 and the accused attended Mgambo training together. As to how often, it was submitted that in our case, they met several times. From the foregoing reasons, Ms. RWEGIMBURA was of the view that the identification was correct. Citing the case of RAYMOND FRANCIS V R, she .said that it is important that identification is thorough. Ms. RWEGIMBURA was of the opinion that the lighter was another important piece of evidence. PW l saw PW 2 giving it to the appellant and PW 4 saw light from the lighter. The ground that there was no proper identification lacks merits and deserves to be dismissed. Another ground was that the trial magistrate erred in law and fact in convicting the appellant relying on the PF 3 tendered in court 6 . without calling the medical doctor who alleged to have examined the victim for cross examination as required by law under section 240(3) of CPA. The learned State Attorney submitted that the accused was charged with robbery with violence. PF 3 was not very important. The prosecution was required to prove that force was used. To use force is not proved by PF 3. In the judgment, the trial magistrate did not base conviction on PF 3 but on identification and the lighter. In the offence of armed robbery S. 278 A has three ingredients. Firstly, that the accused was armed or accompanied by one or more person. In the present case PW l and PW 4 said the accused was accompanied. Secondly, the accused used violence or threatened to use violence immediately before or after commission of offence. There is enough evidence. Thirdly, that the accused committed the said offence. There is evidence. The PW l complained and PW 2 accompanied the appellant to take the telephone which he said he found. On the ground that the trial magistrate failed to evaluate the defense tendered, the Learned State Attorney submitted that the Magistrate could not reach a proper verdict by relying on Prosecution case and not evaluating Defence case. She submitted that the trial magistrate carefully considered the evidence and cited a case in pg 3 of the judgment. The Magistrate evaluated the evidence therefore this ground of appeal should also be dismissed. Was the appellant sufficiently identified? I agree with the trial Magistrate that the accused was identified sufficiently to the extent of ruling out mistaken identity. First there was security light both at Hunters Club and at the house of the PW l so there was enough light to be able to see and recognize a person. Secondly, the appellant 7 ',. . I had been to the club earlier in the night and had left when PW l was at the counter paying his bills. Thirdly the appellant is the one who asked PW 4 for cigarette lighter. PW 2 saw red lighter with blue light. PW 2 testified that he saw blue light at the scene. PW 4 said that he had given appellant the lighter but it was not returned. Identification of the appellant was also by evidence of PW 3. The appellant took PW 3 at the scene where they found a Nokia telephone. This telephone belonged to PW l .This may be explained by the doctrine of recent possession which means that if a person is found in possession of property recently stolen or unlawfully obtained the court may draw an inference that the person found in its possession is the one who stole or unlawfully obtained it. It is a rebuttable presumption, and may be applied to any offence, however penal including murder. I think the inference that the appellant had something to do with the robbery or was present at the place and time of their robbery is too tempting in the absence of a more credible explanation as to how he came by it. The true test is whether the witnesses gave true and credible evidence. The trial Magistrate saw and heard them and was satisfied with the credibility of their testimonies. She was the best person to give judgment as to the demeanor and credibility of their evidence. I am therefore satisfied that the appellant was sufficiently identified. I will therefore uphold his conviction by the Morogoro District Court. Having said the above I dismiss the appeal filed by the appellant. The appeal is hereby dismissed. Ms. RWEGIMBURA, STATE ATTORNEY submitted that the offence was committed in 2006. The offence was supposed to be armed 8 robbery and not robbery with violence S.278 A of the Penal Code (Act No. 4/2004) provides as follows: 287A. Any person who steals anything, and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument, or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed "armed robbery" and on conviction is liable to imprisonment for a minimum term of thirty years with or without corporal punishment. PW l's evidence show the number of suspects were more than one. · Evidence by PW 4 there were two of them from the evidence, and the legal requirement, the appellant was wrongly charged with robbery with violence. He was supposed to be charged with armed robbery and the sentence is 30 yrs. The current offence was committed after the coming into force of Act No.4/2004. The Minimum sentence for the offence to which he committed is 30 years imprisonment. The trial court having convicted the appellant, as charged, it ought have a sentence prescribed under section 5(a) (ii) of the Minimum Sentence Act which provides:- "Notwithstanding the provisions of Section 4, if the offender is armed with any dangerous or offensive weapon or instrument or is in company of with one or more persons, or if at or immediately before or immediately after the time of robbery, he wounds beats or strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment to a term of not less than thirty years." From the foregoing observations, it is clear that a fifteen ( 15) years term of imprisonment passed by the trial court is illegal. That 9 sentence is accordingly hereby set aside. Substituted thereof is a sentence of thirty years imprisonment which should start to run from 12th December 2007, a day when the illegal sentence was passed against the appellant, Mbaraka Njinja. E.G. MBISE JUDGE 30/04/2010 10