20111005 TZCA Mtwara

1 IN THE COURT OF APPEAL OF TANZANIA ATMTWARA (CORAM: MUNUO, J.A., MBAROUK, J.A., And BWANA, l.A.) CRIMINAL APPEAL NO. 121 OF 2009 MAULIDI WAJIBU @ HASSANI ............................................ APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appea·I from the decision of the High Court of Tanzania at Mtwara) (Mipawa, J.) dated the 25th day of March, 2009 in Criminal Appeal No. 149 of 2007 JUDGMENT OF THE COURT 4 & 6 October 2011 MBAROUK, J.A.: The District Court of Masasi at Masasi found the appellant guilty of committing an offence of armed robbery contrary to section 287 (A) of the Penal Code, Cap. 16 of the Laws R.E. 2002. He was sentenced to thirty (30) years imprisonment, and ordered to pay Shs. 98,800/= being the value of the stolen property and Shs. 8,000/= for the ailment suffered by 2 the victim. Aggrieved, the appellant appealed to the High Court at Mtwara. He lost the appeal, hence this second appeal. The summary of the evidence that led to the appellant being convicted as charged is as follows. On 9/6/2007 at around 9.45 a.m., PW1 Rajabu s/o Adamu who was in his farm harvesting had a bicycle, a bush knife and a knife. While harvesting, PW1 saw a person, later identified as the appellant advancing to him while holding sorghum stalks. Suddenly, the appellant took the bush knife and threw it to PW1 injuring him on his head. The appellant proceeded cutting PW1 on his hands, legs and toe. PW1 raised an alarm, but no body turned up. The appellant then took a stone and dropped it on PWl's chest. Sensing that the appellant wanted to kill him, PW1 laid down and pretended to have died. As if the odds of the day were not enough, the appellant took a stick and caned PW1 who remained still as if he was dead. Having believed that PW1 was dead, the appellant departed. When PW1 noticed that the appellant has departed, he rose and found that his bicycle, bush knife and knife were no where to be seen. PW1 walked to the road while bleeding from the wounds he sustained. Thereafter, PW3 Abdul Rashid appeared and offered assistance 3 to PWl by carrying him on his bicycle to Nagaga dispensary. PW3 left PWl at the dispensary who was later referred to Mkomaindo hospital on the same day. The medical report in the PF3 is that, the bearer suffered frontal cut wound on the head, right leg and toe caused by sharp object and the harm suffered amounted to dangerous harm which resulted to excessive bleeding and tissue damage. On 17/6/2007 at 10.30 p.m. PW2 Yusufu Athumani with the help of a militiaman arrested the appellant in a disco house at Mbuyuni. On 18/6/2007, they sent the appellant at Masasi Police Station. Thereafter, on 21/6/2007 when PW4, E. 9633 D/C Suleimani conducted an identification parade, PWl identified the appellant six times. The appellant was then charged with the offence of armed robbery. In his defence, the appellant categorically denied to have committed the offence charged against him. He deponed that, he was arrested at Mbuyuni village while in music dance. He was then sent to Ward Executive Officer and later sent to police. Having being identified at the identification !1 I ' 4 II I I parade, the appellant said the followinb day he was sent to court and I,, charged with the offence of armed robbS'.ry. I ''I 11 I I 'I I. At the hearing of the appeal, toe appellant appeared in person unrepresented, whereas the respondentJ Republic was represented by Mr. ~ Prudens Rweyongeza, learned Senior State Attorney. i' I .1 I I . The appellant filed a memorandu:m of appeal which contained the i: following grounds of complaint. I! I I ,ii (1) That, there was no statement of the victim i . ' taken. :\ , 11 I (2) That, the prosecution failed to mention the I I names and address i of their witnesses at I the preliminary heari~g. ~ I (3) Non-compliance with ]section 47 (1) and (2) 1 of the Evidence Act rnd section 240 ·(3) of the Criminal Procedure Act. I ,I ·1 .1, ~ . 5 (4) That, the charge was not proved beyond reasonable doubt. (5) That, conviction was based on the weakness of the defence. The appellant had nothing useful to add apart from what he has stated in his memorandum of appeal, understandably of being a lay person who is unrepresented. On his part, Mr. Rweyongeza from the outset did not support the appeal. He opted to argue the grounds of appeal generally. He submitted that, there is enough evidence that the appellant was sufficiently identified at the scene of crime by PWl, the victim. He contended that, in his testimony, PWl testified to the effect that he knew the appellant before as a resident of Mikangaula. Whereas in his defence, the appellant confirmed that he resides in the same area, Mr. Rweyongeza said. He added that, · the incident happened at around 9.45 hours in a broad day light. Furthermore, Mr. Rweyongeza submitted that, PWl gave enough description of the appellant on how he identified the appellant. Not only that, PW2 and PW4 confirmed that they were given the description of the 6 appellant by PWl, the learned Senior State Attorney submitted. He further contended that, the appellant was identified by PWl six times in the identification parade conducted by PW4. Generally he said, the appellant was correctly identified. In support of his argument, Mr. Rweyongeza cited the decision of this Court in Gerald Lucas v. R., Criminal Appeal No. 220 of 2005 (unreported). In his brief reply to the grounds of appeal, the learned Senior State Attorney urged us to find all of them with no merit. As to the 1st ground of appeal, we think he correctly submitted that even if there was no statement of PWl taken, but his testimony in court was enough to prove the case against the appellant. In his reply to 2nd ground of appeal, Mr. Rweyongeza submitted that it was not necessary to give addresses of the prosecution witnesses at the preliminary hearing which we think he was correct too. After all, we are of the opinion the appellant was not prejudiced. As to the non-compliance with section 240 (3) of the Criminal Procedure Act, Mr. Rweyongeza correctly submitted that as far as the 7 doctor who wrote the PF3 was not called, hence that ground is with merit. However, he said and we agree with him that, the record shows that PWl was admitted in hospital for the injuries he sustained. We think, that may be taken as a proof that he sustained those injuries and as we shall see shortly, there is sufficient evidence that the appellant was the one who inflicted those injuries on PWl. All in all, we too are of the considered opinion that the appellant's grounds of appeal are with no merits. Generally, we think a major point to be resolved is whether the appellant was correctly identified at the scene of crime. Various authorities from the decision of this Court have emphasized the importance of eliminating all possibilities of mistaken identity in a case involving evidence of visual identification. See: Abdullah bin Wendo and Another vs Rex (1953) 20 EACA 116 and Waziri Amani v. Republic (1980) TLR 250. In the case of Gerald Lucas (supra) guidelines which need to be considered in avoiding the possibilities of mistaken identity were stated, which are:- 8 I First how long did the witness had the accused person under his/her 1 observation. I Second - what was the estimated distance between theltwo people. I Third If it were at night (as in the I instant case) which kind of light did exist. j Fourth had the witriess seen the accused person before the day and time of crime. If so when and how often. Fifth the whole evidence before the 1 court considered, are there material impediments or discrepancie's affecting the correct identification of the accused by . I the witness. I I ' Sixth in the course of the observation I of the accased by the witness, I was there any obstruction I I experienced by the witness, obstruction I which may have 9 interrupted the latter's concentration. In the instant case, the record shows that the incident occurred in a broad day light at 9.45 a.m., the appellant was known to the appellant before and at the earliest opportunity, PW1 correctly gave the description of the appellant which led to his arrest. Not only that, the appellant was identified six times by PW1 in the identification parade conducted by PW4 Considering those circumstances, we are of the opinion that the appellant was correctly identified by PWL We see no reason to fault the two concurrent findings of the two lower courts. In the event and for the reasons stated herein above we do not see any merit in this appeal. In the result, the appeal is hereby dismissed in its entirety. ' 10 i' DATED at MlWARA this 5th day of bctober, 2011. , t ~ ' i E.N. MUNµO JUSTICE OF APPEAL I 'I l M.S. MBAR,PUK JUSTICE OF APPEAL i S.J. BWA~A JUSTICE OF APPEAL I I certify that this is a true copy of t/ihe original. '%':;,--~-·pi ~ (,? 4(