republic vs yasin hamis ally big 2013 tzhc 2226 1 march 2013

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CRIMINAL SESSIONS CASE NO. 81 OF 2011 THE REPUBLIC Versus YASIN HAMIS ALLY @ BIG JUDGMENT Shangwa, J. The Appellant Yasin Hamis Ally @ Big together with three others were charged in the District Court of Ilala with the offence of Armed Robbery c/s 287 ‘A? of the Penal code Cap. 16 R.E. 2002 as amended by Act No. 4 of 2004. He was convicted of the offence charged and sentenced to thirty (30) years imprisonment. The three others who were his co-accused were acquitted and set at liberty. After conviction and sentence, he was aggrieved. Hence this appeal. His appeal is based on four grounds. The first one is that the trial magistrate erred in law and fact by ( convicting him on the strength of the evidence of PW 1 and PW2. The second one is that the trial magistrate erred in law and fact by disregarding the defence evidence of DW4 & DW5. The third one is that the trial magistrate erred in law and fact by crediting the prosecution evidence that he robbed USD 54,000 from PW1 after shooting him with a Pistol. The fourth one is that the trial magistrate erred in law and fact by ignoring the evidence that he was not at the scene of the alleged offence on 27th March, 2009. The appellant was represented by Mr. Myovela, Advocate. The Respondent was represented by Mr. Maugo, State Attorney. The appeal was argued by way of written submissions. ! In his written submissions, Mr. Myovela did not argue the 3rd ground of appeal. I will therefore not consider it. He argued the rest of the grounds. On the 1st ground, he submitted that it was wrong for the trial court to rely on the evidence of PW1 which he said is ambiguous and untrue. He said it is ambiguous on the following reason:- whereas PW 1 told the trial court that ‘after being shot with the Pistol at the Air Port Daladala bus stand on * 27/3/2009, he became unconscious and remained unconscious until 28/3/2009, he said that his statement was recorded at Stakishari police station on 27/3/2009. Mr. Myovela contended that his testimony is doubtful because his statement could not have been recorded on 27th March, 2009 when he was unconscious. Mr. Maugo agreed with Mr. Myovela’s contention that the testimony of PW1 is doubtful for a similar reason given by him. He added that failure by the prosecution (co call a witness who recorded PWTs statement raised doubt in the prosecution’s case. He said that P W l’s testimony is untrue because he said that the Appellant was a taxi driver but he has never boarded his taxi. That the Appellant is called Yasini But that in his testimony, he said that the Appellant is called Bwashee. He contended that Yasin and Bwashee are two different names. There is no dispute that on 27/3/2009 at noon, PW1 Salvatory Faustin Kiwia was at Airpor: Daladala bus stand and that he was shot with the Pistol1in his stomach and robbed USD 54,000 which he had just collected from one Pendo to whom it was entrusted by P W l’s brother called Colman Joseph Kiwale who resides at Kigoma. According to PW1, the one who shot him in the stomach and robbed him USD 54,000 is the Appellant. He said, the money was in a plastic bag and that it was violently taken from him by the Appellant who after doing so boarded a motor cycle and disappeared. He said, he knew the Appellant before the incident and that at the time of the incident, the Appellant was wearing a cap covering part of his face and that the cap fell down during the struggle to snatch the money from f him. He said, he saw him clearly when the cap fell down from his face. In my view, the testimony of PW 1 is neither ambiguous nor untrue. In his testimony PW1 told the trial court that iI immediately after the incident, he became unconscious but he did not say that his statement was recorded on 27/3/2009. Certainly, his statement could not have been recorded by the police on 27/3/2009 when he was still unconscious. What he said is that his statement was recorded on 28/3/2009 although it is dated 27/3/2009. i He said that his statement was ,taken after gaining t conscious following his treatment at Muhimbili Hospital where he was taken by a good Samaritan. I am of the view also that P W l’s testimony is not untrue. It is true. In his testimony, PW1 did not say that the Appellant is called Bwashee as contended by Mr. Myovela. He simply said that When the Appellant approached him, he greeted him as Bwashee. Also, in order to establish that PW1 knew the Appellant as a taxi driver, it was necessary for him to Have been one of his i clients. In fact, the Appellant is a fcixi driver. This was confirmed by PW2 WP.3372 Corp. Magreth who happened to be at the scene of crime together with several others and who said that she used to see him with his taxi at Msimbazi centre. I am of opinion therefore that the trial magistrate did not err either in law or fact by taking into consideration the evidence of PW1 and PW2. Thus, the 1st i 7 ground of appeal fails. The second and fourth grounds of appeal are * interrelated. On both grounds, this court is asked to consider as to whether or not the trial court erred in law and fact by disregarding the Appellant’s defence of alibi. In his defence of alibi, the Appellant testified to the effect that whereas the offence of Armed Robbery with which he was charged is alleged to have been committed on 27/3/2009, on that date he was not in Dar es Salaam. He said for the whole of March, 2009, he was in Songea where he had gone to purchase beans from Maguu village and that while in Songea town, he suffered from severe stomach pain and fever and that he got admitted at ward No. 2 from 20/3/2009 up to 26/3/2009 when he was discharged. He tendered a discharge certificate and the outpatient record card which were admitted in evidence by the trial court as exhibit D3 collectively. He also tendered in evidence a SUMMRY BUS SERVICE ticket i.e. tipket No. 9528 dated 27/3/2009 which was admitted in evidence as exhibit D4. The Appellant’s defence of alibi was supported by his wife DW5 Irene Daniel Mariseli who told the trial court that on 20/3/2009, the Appellant telephoned her from Songea and informed her that he was admitted in Hospital and that on 26/3/2009, he telephonec her that he was discharged from hospital and that on 27/3/2009 he informed her that he has already taken a bus ticket for ■j travelling back from Songea to Dar es Salaam on 28/3/2009. In ignoring the Appellant’s defence of alibi, the trial magistrate relied on the evidence of Matayo Changula, a Doctor from Songea Hospital who was summoned by the court which is to the effect that the Appellant has never been admitted in their Hospital and th'at his name does not i appear in any of their register bcoks. This witness discredited the discharge certificate and the outpatient record card which were tendered by the Appellant as exhibit D3 collectively for being unauthentic. Mr. Myovela discredited this witness for having poor vision and that therefore his testimony that the signatures in the discharge certificate differed with those of Dr. Njowoka nd Dr. 1i Kiloweko was wrongly accepted by the}' trial court. He said, in order to prove the authors of the signature of Dr. Njowoko and Dr. Kilowoko, the two Doctors ought to have > been summoned from Ruvuma Government Hospital where the Appellant claims to have been treated. He said, the Appellant’s discharge certificate and his out patient card together with SUMMRY High Class but ticket were tendered in evidence as exhibit D3 and D4 respectively and that they were tendered without objection. < In my considered opinion, the Appellant’s defence of i alibi with its supporting documents was properly discredited by the trial court Mchome, RM who believed the strong evidence of PW1 and PW2 who clearly saw him at the time and place of incident snatching the plastic bag containing USD 543,000 and who saw him drawing a Pistol > and shooting PW1 in the stomach in order to snatch it. } The incident took place during broad day light. Both PW1 and PW2 are independent witnesses who had nothing to do i in common. All of them happened to know him earlier before the incident and none of them had any reason to tell lies against him. DW5 who supported his alibi is his wife. Therefore, her evidence is of less value. The outpatient card of Songea Regional Hospital which was tendered as i exhibit D3 is dated 18th March, 2009. This was a long { period from the date of incident which took place on 27/3/2009. Thus, it is not quite relevant. The discharge certificate shows that the Appellant was admitted on 20/3/2009 and that he was discharged on 26/3/2009. This was a day before the incident. The incident took place on 27/3/2009. It is possible for the Appellant to have travelled from Songea immediately after being discharged from hospital and arrive at Dar es Salaam the same day or on the next day early in the morning. The SUMMRY bus ticket which was tendered in evidence as exhibit D4 to show that the Appellant travelled from Songea to Dar es Salaam on 28/3/2009, a day after the incident is totally unreliable as the Appellant or his friend could easily go to SUMMRY bus service office at Songea and obtain it in order to support his defence of alibi. For these reasons I hereby dismiss this appeal in its entirety. A. Shangwa is* JUDGE 1/3/2013 Delivered in open court this 1st day of March, 2013 in the presence of the Appellant and Miss Yasinta Peter^ State Attorney for Respondent. ^ 1/3/2013