20120628 TZCA Mtwara

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 192 OF 2011 (CORAM: OTHMAN, C.J., MBAROUK, J.A., And BWANA, J.A.) ERICK BENEDICT MPACHA ............................................APPELLANT VERSUS THE REPUBLIC ....................................... .'................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mtwara) (Mipawa, J.} dated the 18th day of November, 2010 in Criminal Appeal No. 22 of 2009 JUDGMENT OF THE COURT 27th & 29th June, 2012 BWANA, J.A.: The appellant, Erick Benedict Mpacha, was charged with and convicted of the offence of Armed Robbery contrary to section 287 A of the Penal Code. The trial court, the District Court of Kilwa at Kilwa Masako, sentenced the appellant to thirty (30) years imprisonment. His first appeal before the High Court was unsuccessful, hence this second appeal. . I ,. The evidence before the trial court was that in the night of 2ih October, 2007 at Nandete Village within Kilwa District, the appellant, in the company of other people, broke into the shop of Deogratias Nguyu @ Mbuyu, PWl, and stole an assortment of items, the property of the said PW1. In the course of the commission of the offence, the appellant is said to have fired one bullet in the air to scare off people who had turned up, responding to the alarm raised by PWl. A catridge from the said bullet was recovered from the scene. The gun, a locally made one, was recovered the following morning together with other items stolen from the shop. In spite. of the gun shot, neighbours of PWl came to his rescue. That led the bandits to ran away together with the assortment of items they had stolen. Before they ran away, PWl claimed that he could identify the appellant as being among the bandits. He did so using torch light. The High Court considered that aspect of visual identification using torch light and came to the conclusion that the said light was not ideal for positive identification· of the appellant. We agree with that finding by the first appellate court. 2 " The issue of positive visual identification notwithstanding, it is the evidence of all the three prosecution witnesses that having left PWl's shop, the bandits ran and hid into a nearby bushy area. The villagers who had given chase to the bandits surrounded the said forest area and kept vigil until the early hours of the morning. At about 6:00 a. m. the villagers "combed" the bushy area and managed to apprehend the appellant who was hiding thereat. His fellow bandits apparently managed to escape. The items stolen from the shop, together with the gun, were recovered at a nearby area. The appellant showed the villagers where he had hidden those items. The appellant denied to have committed the offence. Before us, he was unrepresented while the respondent Republic was represented by Mr. Paul Kimweri, learned State Attorney. We should state at the outset that we do agree with the learned State Attorney's submission that the procedure used by the prosecution in tendering the two major exhibits during the trial were wrong. The first appellate court, likewise, came to the same conclusion. It was a procedure unheard of under our laws. That gross irregularity led the High Court to expunge from the record, 3 f Exhibits Pl (the assortment of items stolen from the shop and found in posses~ion of the appellant) and Exhibit P2, the gun. The expunge of exhibits Pl and P2 notwithstanding , did not affect the remaining evidence on record. PWl, PW2 and PW3 had testified on what transpired from the time PWl raised the alarm until the arrest of the appellant and recovery of the stolen items and the gun, the following morning. That evidence was not impeached by the defence case. The appellant did categorically state that he had no grudges against any of those people who arrested or testified in court against him. This being the position, we see no reason to fault the evidence of those prosecution witnesses. The trial court and the first appellate court did not fault the credibility and demeanour of those witnesses either. As a second appellate court, we are reluctant to interfare with the findings of the two courts below on this issue of fact in the absence of glaring irregularities and perversity (see Patric Jeremiah V. Republic, Criminal Appeal No. 34 of 2006 unreported). 4 , In his memorandum of appeal before this Court, the appellant had raised several matters including the fact that the prosecution did not comply with the provisions of section 166 of the Tanzania Evidence Act. This is a provision which calls for corroboration of a witness' evidence with a statement made earlier to an authority legally competent to investigate the fact. With respect, we fail to see how this provision of the Evidence Act is relevant or should have been relevant during the trial of the appellant. His other grounds based on a failure to identify him at the scene of crime have, in a nutshell, been discussed above herein, leading to the expunge of some exhibits. The expunge of exhibits Pl and P2 notwithstanding, as a stated above, still, left other evidence which implicated the appellant with the commission of the offence. All in all we are in agreement with the two courts "a quo" . -,,.I regarding the conviction of the appellant. The prosecution established its case beyond reasonable doubt that the appellant committed the offence. We are in agreement with that finding. 5 • The sentence of thirty years imprisonment is the minimum statutory and mandatory punishment. Therefore, this appeal is dismissed in its entirety. DATED at MTWARA this 28 th day of June, 2012 M. C. OTHMAN CHIEF JUSTICE M.S. MBAROUK JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL MBUYA R. M. DEPUTY REGISTRAR 6 /