JUDGMENT GEORGE KOMBA VS REPUBLIC

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY AT SONGEA CRIMINAL APPEAL NO. 25519 OF 2024 (Originating from the District Court of Songea at Songea in Criminal Case No. 36947 of 2023) GEORGE KOMBA……………………………….……………………… APPELLANT VERSUS THE REPUBLIC ……………………………….……………………………. RESPONDENT JUDGMENT Date of last Order 24th September, 2024. Date of Judgment: 22nd October, 2024. KAWISHE, J.: The appellant, George Komba was arraigned before the District Court of Songea charged with two counts: the first count was armed robbery contrary to section 287A of the Penal Code [Cap 16 R.E 2022] and the second count was causing grievous harm contrary to section 225 of the Penal Code (supra). He was charged together with other colleagues who 1 are not part of this appeal. Before the trial court, he denied the allegations. At the end of the trial he was convicted and sentenced for all the counts; first count, to serve thirty years imprisonment and the second count to serve seven years imprisonment. The sentences were ordered to run concurrently. Aggrieved with the decision he has approached and implored this court to set him at liberty basing on the following ground of appeal. That, the offence was not proved beyond reasonable doubt. It was alleged in the particulars of the case that the appellant was arraigned before the district court charged with two counts viz; armed robbery and causing grievous harm contrary to section 287A and 225 of the Penal Code Cap 16 (supra). It was alleged by the prosecution that on 9th September, 2023 the appellant broke in and stole shillings 2,500,000/= the property of Jiendeleze Group. The money was entrusted to Adelhelima Mbawala and immediately before stealing the money did cut Adelihelma Mbawala with a machete on various parts of her body in order to obtain the said money. It was further alleged that, on the same date and place the appellant did cause grievous harm to Magreth Challe by cutting her with a machete on different parts of her body and cause her to suffer grievous harm. The prosecution marshalled seven witnesses to prove its 2 case. The appellant had two witnesses to defend his case. At the end of the trial he was convicted and sentenced to serve thirty years imprisonment. Irritated with the conviction and sentence he knocked the doors of this court for a relief. At the hearing of the appeal, the appellant appeared in person with no legal representation, while the respondent/Republic had the services of Mr. Gaston Mapunda, learned State Attorney. During the appeal, the appellant was invited to submit on his ground of appeal. However, prior to his submission, he prayed for the leave of this court to add new five grounds to make a total of six grounds of appeal. The prayer sailed smoothly before the respondent’s learned State Attorney. Hence, for the interest of justice this court granted the prayer. The appellant adduced the additional five grounds as follows. That: (i) No exhibit was found in the possession of the appellant. (ii) The case investigator did not conduct investigation/search in the appellant’s home after he was arrested. (iii) The money the appellant had, Tzs. 156,600/- was his money. (iv) Exhibits produced in court had no supporting documents. 3 (v) The victim stated that after the incident the appellant ran away, the appellant was not at the scene of crime, he cannot run, he has a problem on his knee. After adding the five new grounds of appeal, the appellant submitted on six grounds of appeal orally. The appellant, Mr. Komba on the 1st ground, submitted that the offence was not proved beyond reasonable doubt. That the trial court, convicted the appellant while the offence was not proved. He argued that the victims, PW3 and PW4 stated that the incident occurred on 9th September, 2023 at 05 hours in the morning. It was the appellant’s claim that the victims testified that they identified the appellant through electricity light. That they knew him even before the incident. The appellant faulted the evidence of the PW3 and PW4 that they did not disclose the type of lights used to identify him on that event. He added that at 05 hours in morning was still dark, how could he be identified as claimed by the victims of the incident. It was the appellant’s contention that the victims failed to tell the court that they knew the appellant before the incident. That they never told the court of the challenge he has on his knee. He concluded the first ground that there was no enough light to 4 identify him. That, he cannot run neither walk fast because of the challenge he has. On the 2nd ground, the appellant argued that no exhibit was found in his possession. Thus, the prosecution did not prove the offence beyond reasonable doubt. He argued further that, it was alleged that the offence occurred on 9th September, 2023 at 05 hours in the morning. That shillings 2,500,000/- were stolen. That the appellant was arrested on the same date at 09:00 am, only four hours past after the incident. He queried why the arresting police officer did not search his home to see where the other money was. That they took money amounting to shillings 156,600/- which belonged to him and turned to an exhibit against him. Substantiating the 3rd ground, the appellant claimed that the case investigator did not conduct search in his home after he was arrested. That he was the very key person to establish the offence. That the investigator did not search his home to know where was the stolen money, instead they took shillings 156,600/- at the police station, which he surrendered as his property, and they turned it to be an exhibit. The appellant contended 5 that from the Shillings 156,600/- he used Shillings 2,600/- at police station and remained with Shillings 154,600/-. Amplifying the 4th ground, the appellant averred that the Shillings 156,600/- taken at the police station belonged to him. That after his arrest, he was taken to the police station where he was asked to surrender what he had. As a result, he surrendered the money and he was given a paper showing that the money belonged to him. That after a while, there came a police officer named Gody, who took the remaining money Shillings 154,600/- as an exhibit. He added that the money stolen was shillings 2,500,000/- but his money was taken and used as an exhibit. He continued to state that when the case was called before the trial court, he told the court that the money belonged to him. Arguing the 5th ground of appeal, the appellant contended that the exhibits produced in court had no supporting documents. That among the exhibits produced in court, the investigation side stated that the exhibits were collected near his residence. That they failed to state whether they were found in his house or in whose place. That if it was near his house, 6 what made them not to search his house. That there were no documents produced before the court. Expounding the 6th ground of appeal, the appellant asserted that the victims testified that after the incident the appellant ran away. The appellant claimed that he was not at the scene of crime, that he cannot run. That he has a problem with his knee. He added that the victims told the court that, after the incident the appellant ran away. That they never considered that, he cannot run or deal with arduous tasks, considering that the victims knew him for a long time. He concluded that, this shows that the victims do not know the appellant, that they have mistaken him. He prayed to the court to dispense justice to the appellant by setting him free. Mr. Mapunda, learned State Attorney responding to the appeal stated at the outset that the respondent objects this appeal. He argued that on the 1st ground of appeal the appellant stated that the prosecution did not prove the case beyond reasonable doubt. Mr. Mapunda avowed that the prosecution proved the case beyond reasonable doubt. That they marshalled seven witnesses. Where PW1 D.CPL Tryphon tendered a machete, which was used in the robbery and caused injuries. That when 7 the exhibit was tendered, the appellant did not object its admission. That it was one of the elements of armed robbery, he invited this court to visit page 16 of the trial court’s typed proceedings. He added that, it is a trite law that if an exhibit was not objected during the trial, it cannot be objected on appeal. Bolstering his argument, he cited the case of Vicent Lomo vs. R, Criminal Appeal No. 337 of 2017 where the Court of Appeal stated that if the appellant did not object admission of an exhibit cannot challenge it on appeal. The learned State Attorney continued to state that, PW3 and PW4 stated that, they were robbed by George Komba on 9th September, 2023. That after he had robbed them, the appellant entered PW3’s room and started attacking her by using a machete on different parts of her body while requiring her to give him the group’s money. The learned State Attorney averred that, when the act was committed there was enough light from the electricity lights which enabled the victim to identify the assailant to be George Komba, the appellant. He added that, the witness testified that the lights were in the room where the appellant broke in and attacked her. The learned Attorney added that, in order to save herself, PW3 told the appellant that the money was in another room in the servant’s quarter. 8 That having being told so, the appellant required PW3 to lead him to PW4’s room, Ms. Magreth Paulo Chale. That after PW4 being awakened, by the help of the electricity lights shining well, saw PW3 bleeding. That she was shocked and screamed. That it was further testified before the trial court that the appellant also smashed PW4 on the forehead by using machete to keep her quiet. That, PW4 saw the appellant going back to PW3’s room. That the appellant got in and came out with the metal box where the group’s money was kept. The learned State Attorney averred that, the armed robbery occurred in a commotion, sequence of events, it was easy for PW3 to identify the appellant as they stayed together for a while. That the witnesses told the trial court that they knew the appellant before the incident, as they are villagers of the same village of Nakahegwa. The learned Attorney insisted that, it was not their first time to see the appellant. He maintained that it was an identification of a person they knew before. That it is a trite law that, identification of a person known, is an identification free of suspicion compared to identification of a person met on the incident. In fortifying his submission, he cited the case of Abdallah Kondo vs. R, Criminal Appeal No. 322 of 2015. The learned 9 State Attorney contended that the identification by PW3 and PW4 was very reliable compared with an identification of a stranger. Mr. Mapunda continued to build up his submission by stating that PW3 and PW4 further stated that after the appellant injured them, he went in and took the metal box with the money, Shillings 2,500,000/-. According to the learned State Attorney, this shows that the appellant used force to get the money. That the appellant cut the victims by machete to get the metal box with the group’s money. That their evidence was corroborated by PW7, Dr. Geofrey Fredrick. That PW7 in his testimony stated that he received PW3 and PW4 having wounds bleeding. That after examination the wounds showed that, they were cut by a sharp object. Mr. Mapunda added that the witness tendered PF3s for PW3 and PW4. That they were not objected by the appellant. In his view, the appellant agreed with the contents of the PF3 that the victims were cut by a sharp object. The learned State Attorney averred that PW3 and PW4 named the appellant at the earliest opportunity. That they mentioned the appellant to have robbed them to PW5, Dennis Donald Matembo, he referred this court to page 31 of the trial court’s typed proceedings. He declared that it is a 10 principle set by the Court of Appeal that the ability of a witness to name the accused at the earliest possible opportunity clears the doubt on identification. He strengthened his argument by citing the case of Ngaru Joseph and Mnene Kapika vs. R, Criminal Appeal No. 172 of 2019 CAT. Thus, it is clear that the appellant was identified without any doubt. That the evidence shows that, the one who attacked the victims before stealing the metal box with money was the appellant. The learned State Attorney went on to submit that the appellant was interrogated and in the cautioned statement confessed to have committed the offence in collaboration with other two persons who are not part to this appeal. That it is a trite law that when the accused confessed freely, becomes a witness helping the prosecution in proving a case against him. He referred the principle accentuated in the case of Herman Muhe vs. R, Criminal Appeal No. 113 of 2020. That the appellant’s voluntary confession to have committed the offence was a credible witness for the prosecution in proving the case beyond reasonable doubt. He concluded his submission on this ground by stating that the prosecution proved the offence with the ingredients of armed robbery and grievous harm contrary to section 287A 11 and 225 of the Penal Code (supra). Hence, the first reason lacks merit and prayed to this court to dismiss it. Countering on the 2nd ground of appeal that no exhibit was found in the appellant’s possession. That the incident occurred on 9th September, 2023 at 05 hours. That the money stolen was 2,500,000/- and was arrested at 09 am only four hours after the incident. That they did not search his home. He argued that it is true that after the incident, the appellant escaped to Lizabon Street within Songea Municipal. That he was arrested and searched by PW2. That he was found with Shillings 154,000/- which is exhibit P5. Mr. Mapunda elaborated that the money was taken under seizure procedures, exhibit P11. The learned State Attorney stated that it is true that, the appellant’s home was not searched. He added that, after his confession before PW2, the appellant never disclosed where the money was. Mr. Mapunda stated that the money found in the appellant’s possession was part of the money stolen together with his colleagues who are not part of this appeal. That it is not true that the appellant was not found in possession of any exhibit, he was found with shillings 154,000/-. That it is found in his cautioned statement, exhibit P12 where he confessed to have committed the offence. He added that the appellant’s submission 12 that he was not found with any exhibit is unfounded. He prayed that the court be pleased to dismiss the second ground of appeal. Disproving the 3rd ground of appeal that, the investigator did not search the appellant’s home after arrest, the learned State Attorney argued that the appellant after the incident he was interrogated by PW2. That he confessed to have committed the offence with other colleagues. That he never stated that he kept the things at his home so that the detective/investigator could go and search. He cited section 38 of the Criminal Procedure Act [Cap 20 R.E 2022], which provides that, if anything is connected to the commission of an offence be searched. There was no connection of the appellant’s home and the incident. There was no need to search the same. He implored this court to dismiss this ground appeal. Opposing the 4th ground that, the money was his, Mr. Mapunda submitted that it was shillings 156,600/- found in possession of the appellant was part of the money stolen at Nakahegwa Village. That after commission of the act, the appellant fled from the scene of crime to hide in Lizabon within Songea Municipality. That when interrogated by the PW2 never stated that the money belonged to him. He only stated that they 13 committed the offence and he took the money found inside the metal box, exhibit P10. That he confessed to have committed the offence, he was a credible witness to the prosecution to prove the offence. When the money was tendered in court as exhibit P5 the appellant did not object that the money belonged to him and has no connection with the robbery. That for not objecting, he agreed that, the money was part of the money robbed from Nakahegwa. The learned State Attorney stated that when the appellant was searched at the police station, he was found with shillings 156,600/. This contradicts her defence witness DW2, WP9002 CPL Asha who stated that, the accused after being searched was found with shillings 154,000/- and not shillings 156,600/- as stated by the appellant. That is why when the money was tendered he never objected because his money was shillings 156,600/- he held that the ground is baseless be dismissed. Countering on the 5th ground, that the exhibits like the machete were not accompanied by documents. Mr. Mapunda replied that the exhibits were accompanied with certificate of seizure like exhibit P14. That it was 14 tendered by PW6, the seizing officer. He contended that this ground is baseless be dismissed. Reacting on the 6th ground, that he was not on the scene of crime and did not run as he was not on the scene of crime. That PW3 and PW4 stated that he was at the scene of crime that, he has a knee problem. That they failed to state his challenge. Mr. Mapunda countered that, if the appellant wanted it to use alibi, according to section 194(4) of the Criminal Procedure Act [Cap 20 R.E 2022], the appellant was required to inform the court accordingly. That by not doing so, his defence that he was not at the scene of crime becomes baseless. He prayed that this ground be dismissed too. That the appeal be dismissed in its totality and the decision of the trial court be upheld. In brief rejoinder, the appellant reiterated his submission in chief. He added that he objected admission of the exhibits tendered before the trial court. That he had two witnesses, Asha and Eddy who were at Songea Mjini Police Station and gave them shillings 156,600/. That later he ordered meal and a soda for 2,000/-. That, Gody took the money and used the same as exhibit against him. That he was arrested at Lizabon when 15 shopping commodities for his shop. That no exhibit was found in his house. That the victims although they testified that they knew him before the incident, they did not tell how many electricity bulbs were at the scene of crime. Having heard and followed the submission from both parties, this court is set to determine the appeal on merits. The main question to be answered in order to dispose of this appeal is whether the prosecution proved the case beyond reasonable doubt. I will determine the 1st ground singly, combine the 2nd, 3rd and 4th grounds, while the 5th and 6th grounds of appeal will be dealt with singly in disposing them. On the first ground of appeal the appellant complained that the offence was not proved beyond reasonable doubt. In rebuttal, the learned State Attorney argued that, PW3 and PW4 stated that, they were robbed by George Komba on 9th September, 2023. That after robbed, the appellant entered PW3’s room and started attacking her using machete on different parts of her body while requiring her to give him the group’s money. He added that when the act was committed there was enough electricity light to enable the victim to identify the assailant to be George Komba, the 16 appellant. The main complaint of the appellant is how was he identified. It was his lamentation that PW3 and PW4 did not tell lights used to identify him. That they stated that they knew him before the incident but did not state if he has a leg problem. I have considered the learned State Attorney’s submission against the appellant’s complaints. It is undisputed that the offence of armed robbery was committed at 05hrs in the morning. According to PW3 the incident took place at 05 hours. PW4 testified before the trial court that they reside together with PW3 in the same place. That on the material date PW3 knocked her door, when she opened the door she met PW3 bleeding while the appellant stood behind her. Trying to raise alarm for help the appellant slapped her with the machete her on the forehead. From this piece of evidence, the trial court was satisfied that the appellant was visually identified. It is an established principle that, visual identification has to be taken with great care. It has to be watertight. There is plethora of case law on this principle. See the case of Ngaru Joseph & Another vs. Republic (Criminal Appeal No. 172 of 2019) [2022] TZCA 73 (25 February 2022) where the Court of Appeal cited with approval the case of Waziri Amani vs. Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 17 (6 May 1980) and Emmanuel Mdendemi & Another vs. Republic (Criminal Appeal 86 of 2007) [2009] TZCA 38 (8 September 2009). Where in the case of Waziri Amani (supra) the Court accentuated the factors to be considered in ascertaining proper identification to be: “The time the witness had the appellant under observation; the distance at which he observed the appellant; the time when the offence was committed, whether during day light or at night time and if at night the light used and whether it was sufficient to enable positive identification and whether the witness knew the accused before the incident. It is also noteworthy that in identification by recognition, the factors mentioned above apply.” [Emphasis is mine]. Those factors established by the Apex Court in our jurisdiction are binding on this appeal at hand. The first factor, how long did PW3 and PW4 take to observe the appellant. According to the records available and submission made by the learned State Attorney, the appellant broke into PW3’s house, took sometime at the sitting before he bumped into PW3’s bedroom. The testimony of PW3 is that, the appellant slashed her at different parts of her body asking for money. It was PW3’s testimony that she told the appellant that the money was stored in the backyard room. She was let to go to the backyard. That the appellant was guarding her. It was the testimony of PW3 that she knocked PW4’s door. That when PW4 opened her door met 18 PW3 bleeding while the appellant stood behind PW3 with a machete. When PW4 raised alarm for help, the appellant smashed her on the forehead with the machete. Then, the appellant went back to PW3’s room, took the metal box with money and left. All that time the appellant was struggling with PW4 and PW3 to get the money was an opportunity to PW3 and PW4 to observe the appellant distinctly. They testified that there were electricity lights shining at the scene of crime. The time taken to attack PW3 in her room, escorting her to PW4’s room was enough to observe and identify the appellant. The first factor Waziri Amani (supra) is met in this appeal at hand. Considering the second factor, whether the incident took place during the day or at night and if at night the light used and whether it was sufficient to enable positive identification. PW3 and PW4 who were the victims of the malevolent act, testified and was cemented by the learned State Attorney’s submission that at the scene of crime there were shining lights powered by electricity. Nevertheless, the appellant challenged the submission and the evidence by stating that the witnesses did not tell the lights used to identify him. That they stated that they knew him before but never revealed that he has a leg problem. As submitted by the learned 19 State Attorney, PW3 and PW4 stated that there were electricity bulbs shining at the scene of crime. Inside PW3’s room there were lights shining to enable her to markedly identify the appellant. This goes together with the third factor whether the witness knew the accused before the incident. At page 26 of the trial court’s proceedings, PW3 testified before the trial court that they are villagers of the same village. That the appellant passes near her house as they are neighbours. She maintained her stance even when cross examined by the appellant. This testimony before the trial court was corroborated by PW4's testimony. That PW4 saw the appellant at the scene of crime, cut her on her forehead. She identified him from the electricity lights which were shining at the scene of crime. On top of that, she knew the appellant before the dreadful incident. That they live in the same village. Marinating the prosecution’s evidence, the appellant in his defence testified that he knows PW3. That he passes near her house frequently. In line with that, the proceedings show that, when he was arrested he exclaimed that, ‘it is Ade (PW3) who mentioned me.’ I find coherence in the evidence of PW3 and PW4 on identification of the appellant. Both knew the appellant before the incident. PW3 testified that the appellant smashed PW4 on the forehead. PW4 testified the same that 20 the appellant smashed her on her forehead when she tried to raise alarm for help. This is clear that the identification of the appellant passed the test of mistaken identity. See the case of Jumapili Msyete vs. Republic (Criminal Application No. 4 of 2017) [2018] TZCA 314 (13 December 2018). Adding to the identification value, PW3 and PW4 raised alarm for help after the appellant had vanished. Coming for rescue, PW5 asked as to what happened, he was informed by the victims (PW3 and PW4) that it was George Komba, the appellant who robbed and injured them. The witnesses mentioned the appellant at the earliest opportunity. By so doing, the witnesses deserved the credibility accorded by the trial court. This is in accordance with the position established by the Court of Appeal in the case of Goodluck Kyando vs. Republic [2006] T.L.R 363, the Court stated that: “It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing a witness.’” Given this principle, and since the testimony of the witnesses was believed by the trial court which observed their demeanor, there is no reason for 21 this court to doubt their credibility. See the case of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2000 (unreported). PW3 and PW4 knew the appellant before the incident. The appellant also confessed to have known the witnesses before the act as he passerby her house. Since they knew him before the incident and given the time taken to rob and attack with the help of the lights available, it is my view that the witnesses identified the appellant without and morsel of doubt. Thus, the first ground fails. On the 2nd, 3rd and 4th grounds, the appellant argued that no exhibit was found in his possession. No search was conducted at his house for the stolen money. Mr. Mapunda stated that since the appellant escaped to Lizaboni street, search could not be done without the appellant’s statement leading the search. The appellant claimed that the prosecution did not prove the offence. That they took money amounting to shillings 156,600/- which belonged to him. Responding to the appellant’s claim, Mr. Mapunda learned State Attorney submitted that he was arrested and searched by PW2. That he was found with shillings 154,000/- which is exhibit P5. The money was taken under seizure procedures, exhibit P11. That such money was part to the money robbed from PW3. The appellant claimed that he 22 surrendered Shillings 156,000/- at the police station. PW1 testified that he was given Shillings 154,000/- as an exhibit. He tendered the same and was admitted as exhibit P5. The appellant never objected the same. Also, PW2 testified that he searched the appellant and found him with 154,000/- he tendered the certificate of seizure without any objection from the appellant. In his defence the appellant maintained that he had Shillings 156,000/- but one police officer, Gody took it as an exhibit. DW2 testified that the appellant was searched and found with Shillings 154,000/-. The appellant during the hearing of this appeal came with a new version of evidence that he spent shillings 2,600/- at police station, it remained 154,600/-. It contradicted his evidence and his witness DW2. He never raised such an issue before the trial court so that all parties could have addressed it before the trial court. The trial court had no opportunity to deal with it. As a new issue cannot be entertained at appeal. An appeal deals with matters dealt with by the trial court. Matters not raised before the trial court without any valid justification, cannot be entertained at appeal. This is an afterthought. These grounds bear no fruit, they have failed. 23 Reverting to the 5th ground, the appellant contended that the exhibits produced in court had no supporting documents. Mr. Mapunda argued that the exhibits like the machete were accompanied by documents. Mr. Mapunda replied that the exhibits were accompanied with certificate of seizure, exhibit P14. That it was tendered by PW6, the seizing officer. According to the records available, page 18 to 19 of the trial court’s proceedings, the money seized from the appellant were accompanied by a seizure certificate tendered and admitted as exhibit P11. Exhibit P3 and P4 for envelops with money, and P9 for the machete. It is clear that the exhibits were accompanied by the relevant documents. The 5th ground lacks merit, hence dismissed. On the sixth ground the appellant averred that he was not at the scene of crime. The learned State attorney argued that, the appellant is pleading alibi at the appellate level. That if he wished to rely on alibi, he should have followed the required procedures at the trial court. I am inclined to the learned State Attorney’s argument. This is in accordance with section 194(4) of the Criminal Procedure Act [Cap 20 R.E 2022], it states: 24 “Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case’.” Subsequently, the appellant did not raise the defence of alibi before the trial court, I see no reason of according it any weight at this stage. It is an afterthought which is barren. The 6th ground of appeal lacks merit. From the foregoing reasons, I find that the prosecution proved the case beyond reasonable doubt. The appellant was unmistakably identified by the prosecution witnesses. The accused’s defence was far from denting the prosecution’s evidence. Consequently, the appeal lacks merit. Accordingly, the appeal is dismissed in its entirety. The trial court’s conviction and sentence on both counts are upheld. It is so ordered. DATED and DELIVERED at SONGEA this 22nd day of October, 2024. E. L. KAWISHE JUDGE 25 COURT: Judgment delivered in the presence of Mr. Gaston Mapunda, learned State Attorney for the respondent and in the presence of the appellant, Mr. George Komba in person. Right of appeal explained. E. L. KAWISHE JUDGE 22/10/2024 26