20141022 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 87 OF 2010 (ORIGINAL CRIMINAL CASE NO. 141 OF 2009 OF THE DISTRICT COURT OF KONDOA DISTRICT AT KONDOA- BEFORE J.A. KATO ESQ. RESIDENT MAGISTRATE) HAJI BAKARI @ HASSANI ............... APPELLANT Versus THE REPUBLIC ................................. RESPONDENT 06/08/2014 & 22/10/2014 JUDGEMENT MAKURU. J. In the District Court of Kondoa District at Kondoa, the appellant Haji Bakari @ Hassani was charged with the offence of armed robbery contrary to section 287 A of the Penal Code. He was convicted under section 286 and 287 A of the Penal Code and was sentenced to thirty {30} years imprisonment term. Briefly the background of this case is as f o l l o w ~ 2 The complainant, Mahamadi Halifa (PWl) and the appellant, Haji Bakari @ Hassani were both residents of Kelema Village within Kondoa District, Dodoma Region. On 01/11/2009 in the morning PW, his elder brother Abdul Ally (PW3) and one Mr. Adamu (PW2) went to fetch water for business purposes at Karamba Village. They used a bull-drawn cart to carry forty (40) buckets of water, each twenty litres. On their way home, they met the appellant armed with a spear. He threatened PWl and PW3 with the spear. He later attacked PWl on his right hand shoulder using the spear and stole cash TShs. l 00,000/= from him. This was witnessed by Ada Halifa (PW2) and Abdul Ally (PW3). The appellant made a cautioned statement before D.7347 D/Cpl. Kichonge (PW4) which was tendered and admitted in court, without objection, as exhibit PE2. In his defence during trial, the appellant raised a defence of alibi. He alleged that on the material date he was at home engaged in his agricultural activities. The trial magistrate rejected the defence. He was of the view that the appellant was properly identified at the scene of crime by PW 1, PW2 and PW3 who knew the appellant well as their village mate. He was convicted and sentenced as stated above. Dissatisfied with District court's decision he has filed this appeal. 3 When the appeal was called for hearing the appellant appeared in person unrepresented while Ms. Nsana learned State Attorney, represented the respondent/Republic. The appellant as a lay person did not have much to say. He prayed that his grounds of appeal be adopted as his submissions and be considered. Ms. Nsana supported both conviction and sentence imposed on the appellant. In regard to the first ground of appeal on whether the appellant was properly identified, she submitted that he was properly identified as the offence was committed in the morning around 06.00 a.m., PWl, PW2 and PW3 knew the_ appellant prior to the incident and he was qt close range as he stole PWl 's TShs.100,000 and inflicted injuries on PWl 's shoulder. As regards description, she was of the view that there was no need for description as the witnesses knew the appellant prior to the incident. To support her argument she cited the case of Juma Shabani v. R. Court of Appeal Criminal Appeal No. 168 of 2004 (unreported, Mwanza Registry) whereby it was clarified that if the witness knew the invaders before the incident, description is not necessary. She contended that the appellant was properly identified that is why he was arrested the same day hiding in the bush. She concluded on this point by submitting that the properly identified. 4 With due respect, I share Ms. Nsana's view that the appellant was properly identified by PW 1, PW2 and PW3. I am further of the view that this case met the standards set in the case of Waziri Amani v. R ( 1980) TLR 250. As regards the second ground that all witnesses were from the same family, she submitted that the law does not prohibit members of the same family to testify in court, provided that they were credible witness. I agree with Ms. Nsana that there is no law which prohibits members of the same family to testify in court. Each case must be decided according to its own circumstance. In the present case, it was only family members who were at the scene of crime when the offence was committed. PWl, PW2 and PW3's evidence was direct, as per section 62 of the Evidence Act, Cap R.E. 2002. In his cautioned statement, the appellant . admitted to have met PWl, PW2 and PW3 on the material time and date of incident while he was armed with a spear. There is no way I can fault the trial magistrate for convicting the appellant basing on the evidence on record. For the 3rd ground, that the PF3 was not tendered in court she admitted that, it was true but she was of the view that the trial magistrate had an opportunity of seeing PWl testify in court and he saw the scars and disability caused by the appellant. She contended that what has to be considered is the use of force and ~ 5 the weapon used immediately or after the commission of the offence. I am of the considered opinion that there was a weapon, spear used to attack PWl on his shoulder during the commission of the offence as testified by PW2 and PW3 who were eye witnesses. The offence committed falls under the ambit of section 287 A of the Penal Code as amended. As regards the fourth ground on the cautioned statement that it was not properly admitted, she submitted that it has no legal basis and that it was an afterthought. It was her contention that the appellant did not object for it to be tendered and admitted in evidence. As the cautioned statement was tendered and admitted in court without any objection, I am of the view that the appellant slept on his right and the same cannot be challenged at this stage. Regarding the fifth ground that the defence evidence was not considered by the trial court, she argued that it was considered. She was of the view the defence evidence did not raise doubt that is why the trial court convicted the appellant basing on the strong prosecution evidence. Going through the trial court judgement the defence evidence was considered and it was held that all elements of the offence which the accused stood charged with have been proved beyond a reasonable doubt. I am of the considered opinion that the trial court cannot be faulted on this point. u 6 As for the sixth and last ground that the trial court's judgement did not abide to section 312 of the Criminal Proc-edure Act, it was her stand that it was a well reasoned judgement. She was further of the view that the appellant was rightly convicted and sentenced. With respect, I agree with Ms. Nsana that the trial court properly analysed the evidence before it and it was a well reasoned judgement to be faulted. As indicated earlier, this court has observed that the accused was charged with the offence of armed robbery contrary to section 287 A of the Penal Code and he was convicted under section 286 and 287 A of the Penal Code. There is an omission in the charge sheet. The omission is curable under section 388 of the Criminal Procedure Act, Cap 20 R.E. 2002 as it. does not occasion any injustice. All in all, and for the above stated reasons, I am of the view that this appeal is devoid of merits and is accordingly dismissed in its entirety. c~u JUDGE 22/10/2014 :., 7 . ~ 1 DATE: 22/10/2014 Coram: HON.C. W. MAKURU, J. Appellant: Present Respondent: Ms. Nsana, SA C/C: R. Nyembe COURT: Judgement delivered in court this 22nd day of October, 2014 in the presence of the appellant in person and Ms. Nsana, learned State Attorney for the Republic. C. W. MAKURU JUDGE 22/10/2014