hamisi so bakari lambani another vs republic 2010 tzhc 267 19 april 2010

IN THE HIGH COURT OF TANZANIA

AT MTWARA CRIMINAL APPEAL NO. 86/2008 C/F CRIMINAL APPEAL NO. 87/2008 ORIGINATING FROM CRIMINAL CASE N0.25/2008 OF THE

DISTRICT COURT OF MASASI AT MASASI (BEFORE: B.N. MASHABARA, DRM) 1. HAMISI S/O BAKARI LAMBANI 2. RIDHIKI S/O HEMEDI H ALFANI........... APPELLANT

VERSUS THE R E P U B L IC .......................... RESPONDENT 22/3/2010 and 19/4/2010

JUDGMENT S. A. Lila. J. , Hamisi Bakari Lambani and Ridhiki Hemedi Halfani, the first and second appellants respectively, were jointly indicted before the district court of Masasi on an indictment which contained two counts: Count one: Armed Robbery, contrary to section 285 and 287(A) of the penal code. Count two: Grievous harm, contrary to section 225 of the penal code. 1 They were convicted as charged. This is what the trial magistrate stated in his judgment, I quote: “I hereby convict first accused person to 60 years imprisonment and 24 strokes for first count second count is inclusive because is lesser offence and second accused is hereby sentence (sic) to 30 years imprisonment and 24 strokes for first count and second offence is inclusive as it is lesser offence...” The conviction and sentence aggrieved them, hence these two appeals No. 86/2008 and 87/2008 which were consolidated in criminal appeal No. 86/2008. * According to the trial court record, the evidence adduced before the trial court is clear and straight forward. According f i to Thabiti Mwipaiti (PW1) on 23/ 1/2008 while at Mkuti area with a motorcycle used for hiring the 1st appellant went to him and hired him so that he sould take him to Mkarango village. They left to Mkarango and they passed through Uwanja wa lisi where the 1st appellant ordered him to stop. While thereat a policeman - PC Iddi (PW2) appeared

and sought to hire him so as to be taken to police post. PW1 refused on the basis that he was already hired by the 1st appellant who appeared thereat. That PW1 and 1st appellant left to Mkarango. That 2 after moving a short distance near a cashewnut the 1st appellant ordered him to stop so that he could meet about three persons. That after few seconds he was attacked by the appellant with three other persons and the 1st appellant faced him and caught him by the neck. That he (PW1) was severely attacked and beaten by the 1st appelland together with the other three person and was stabbed on his eyes by a sharp instrument. That he identified all the assailants before he fell unconscious and taken to Ndanda Hospital where he recovered after seven days. That he was later referred to CCBRT - Dar es salaam for treatment where it was revealed that he had completely lost eye sight, he was blind. PW1 further said on 3/4/2008 one Ridhiki (2nd Appellant) went to his sister one Fatuma Raymond Mwipaiti (PW3) and told him that the 1st appellant was seeking for pardon and was requesting the matter be settled out of court. That was done before his sister but he refused. F.5540 DC Iddi (PW2) told the trial court that on 23/1/2008 at about 20:30 hrs he was ( at “uwanja wa Fisi” where he met PW1 who he knew to be a motocycle rider and asked him to send him to police post. That PW1 told him that he

was already hired by the 1st appellant to take him to Mkarango. That after a while the 1st appellant who he knew prior to appeared holding a beer on his hand. That he then left to police post on foot. That the next day 24/1 /2008 he went to the stand where he heard information that PW 1 had his. eyes injured and he told his leader “afande” Hurbert that he saw PW1 with 1st appellant the previous night at 20:30 hrs' while on the way to Mkarango. 3 PW2 said he knew the house of the 1st appellant but he didn’t know when and where the 1st appellant was arrested. He said he didn’t know the 2nd appellant. Fatuma Raymond Mwipaiti (PW3) who is the wife of Juma Hamisi Slim (PW5) told the court that she was staying with PW1 who was her bloody brother. That she came to know that PW1 Had his eyes destroyed on 24/1/2008. That on 3/4/2008 the 2nd appellant went to her house and heard all the conversation between PW1 and him. She did not however tell what PW1 and the 2nd appellant were talking. A similar evidence was given by PW5. Hamisi Bakari (PW4) simply told the trial court that he owned a motorcycle registration number T.744 ATK SUNLG which he gave to PW1 for hiring business. He said that he learned that PW1 was injured his eyes. He did not tell the whereabout of his motorcycle after the incidence. Dr. Sadick Ali Hassan (PW6) told the court that he attended PW1 and in his test

he discovered that PW 1 had lost sight and he filled ttie PF3 (Exh.Pl). In their sworn defence both appellants denied committing the offences as well as knowing each other. The 1st appellant, a resident of Mkarango, told the trial court that on 23/04/2008 he was at his house at Mkarango up to 19:00 hrs and before he slept his relative one Azizi Mohamed (DW3) visited him and spend the night thereat. That on 17/2/2008 i he left to Mkuti for buying limestone and at 13:00 hrs hired a motorcycle for that purpose which he also used to take his wife to Ndandambo. That thereafter he returned the motocycle i 4 to the owner (DW4) who he did not find and while waiting for him at Sabasaba within Masasi township he was arrested by Police and later charged with these offences. He said no one prosecution witness said he saw him robbing PW 1 the motocycle hence all they told the trial court was hearsay. For his part, Ridhiki Hemedi (DW2) told the trial court that on 3/4/2008. he went to visit Slim (PW5) but thereat he found PW3 and PW1 and the former asked him where he was taking to the plastic container. That PW3 called him a thief and a crowd of people invaded him and beat him. That he was later arrested by one A/insp Chacha. He denied seeking PW1 to pardon the 1st appellant. The 1st appellant called one Azizi Mohamed (DW3) as his witness who told the trial court that on 23/01/2008 he

visited * the 1st appellant from Songambele and slept thereat but did not tell if he met the 1st appellant and they both spend a night t in such house. One Masoud Michael (DW4) told the trial court that the 1st appellant hired his motorcycle on 17/2/2008 for transporting lime from Mkuti to Mkarango. The trial court found the charges proved and convicted both appellants. The two appellants filed their memorandum of appeal each containing eight grounds of appeal which are materially similar. Their major complaints boil down to the issue of not 5 being properly identified at the scene of crime, the offence of armed robbery not having been established, and the illegality of the sentence imposed to them by the trial magistrate. Arguing the appeal before me the 1st appellant reiterated what is contained in the grounds of appeal while the 2nd appellant said he did not go to PW 1 to ask for his apology to the 1st appellant hence it was not proper for the trial court to base its conviction on that. Miss Mangu, Learned State Attorney supported conviction against the 1st appellant. She submitted that the 1st appellant was properly identified by PW1 at the scene of crime as he was the person he knew for long, he hired PW 1 at Mkuti area and they passed at Uwanja wa Fisi up to where he turned against him while with other persons. She added that PW1 could not mention the names of other

persons because he never knew them by names. That PW1 gave, in his t testimony, a detailed explanation on how the incident / happened and the role played by the 1st appellant that he was first to attack him by holding him by the neck. She further argued that the 1st appellant was the last person to be seen with PW1 as was proved by PW2 who saw him with PW1 going to Mkarango. On that account the 1st appellant was bound to tell where he parted with PW1, the learned State Attorney insisted. She said, the 1st appellant gave a false story that on the fateful day he was at Mkarango with one Azizi Mohamed (DW3). She said the evidence therefore proved participation of 6 l ht appellant in attacking PW1. She further argued that PW1 said he was stabbed with a sharp object while held by the ncck by the 1st appellant though he could not tell who did so. Regarding the 1st appellant raising the defence of alibi, the learned State Attorney submitted that under section 194(4) and (5) of the CPA 1-985 the appellant did not comply with the mandatory requirement of raising such defence at the earliest possible opportunity that is before presenting his defence. She said that even DW3 who gave evidence to the effect that he visited the 1st appellant and spend a night there, did not tell if the 1st appellant was present or not. Regarding the 2nd appellant, the learned State Attorney argued that the

only evidence touching him was that he went to PW 1 to seek apology for the 1st appellant which evidence, was insufficient to found conviction. She concluded that she does not, on the evidence, support his (2nd appellant) conviction. i On the issue of sentence the learned State Attorney , i argued that the trial court magistrate erred in giving a ! cumulative sentence of 60 years for the two offences for each accused (appellants). She said, the trial magistrate ought to have pronounced sentence for each offence (count) and then order the sentences to run consecutively. In reply the 1st appellant insisted that as the offence was committed at night then the source of light which enable PW1 and PW2 identify him ought to have been put open. That at the time PW1 gave evidence he was blind hence he wondered how he identified him at the dock as being the one who attacked him. He added 7 that DW3 told the trial court that he (1st appellant) was at home when (DW3) slept in his house. After hearing both sides, I allowed the appeal against 2nd appellant and I ordered that he be released from prison. I reselved the reason which I will now give in this judgment. I have given due consideration to the arguments by both sides. I have had also sufficient time to thoroughly go through the trial court record. The trial court record shows that both appellants were, in the first count, jointly

charged with the offence of armed robbery contrary to section 287(A) of the penal code. The facts alleged that the two appellants on 23/1 /2008 at or about 21:30 hrs at Migongo area within Masasi district did steal cash money Tshs.41,000/ = , one handset makfe%Jokia valued at Tshs.70,000/=, one wrist watch make Casic valued at Tshs. 15,000/= and one pair of shoes valued at Tshs.25,000/ = all total valued at Tshs. 151,000/= the property of Thabiti Mwipaiti and immediately before or after the time of such stealing.did use iron bar, bush knife and knives in order to obtain the properties. It is trite law that the offence of armed robbery under section 287A of the penal code is committed when an arm or lethal weapon is used to threaten in order to obtain or retain property stolen from its owner. In principle therefore the use of an arm or lethal weapon so um to threaten violence, which is an clement in the crime of armed robbery, not only must be for the purpose of obtaining or retaining the thing stolen, but must occur at the time of the theft or immediately before or after it. In law, therefore, the offence of armed robbery is committed when an arm or lethal weapon is used to threaten the owner of thing to be stolen either before so as to effect the theft or after theft so as to retain the thing stolen. So to prove armed robbery, there must be sufficient evidence

establishing that theft was committed in that something was stolen or taken from the owner of it and an arm or lethal weapon was used to obtain or retain that thing stolen. The above narration of the legal position is not without a purpose. In the instant case, al that is in evidence is that PW1 was attacked by the 1st appellant while with other three persons and had his eyes stabbed by a sharp object that caused loss of sight. There is no evidence that anything was taken from him during the incident. No theft was therefore committed! The offence of armed robbery can not, in the circumstances, stand. I am thus satisfied that, on the evidence on record, the offence of armed robbery was not proved and the appellants were therefore improperly convicted of the offence of armed robbery. Their convictions on this offence can not be sustained. Their conviction is accordingly quashed and sentences handed down set aside. 9 I now turn to the second count of causing grievous harm •tHnilniry to section 225 of the penal codc. 'Phis was count number two. I would, with respect, agree with the learned State Attorney, Miss Mangu that the evidence on record did not establish the complicity of the 2nd appellant in it. All that was said by the prosecution witnesses (PW1,PW3 and PW5) was that he (2nd appellant) went to PW3 house to meet PW1 and sought for his apology to the 1st appellant. It is a

common ground that the 2nd appellant, on 3/4/2008 visited the home of PW3 and PW5. Though the 2nd appellant denied meeting PW1 and seeking apology to the 1st appellant, there was sufficient evidence establishing that he talked to PW1 and sought for his pardon to 1st appellant. PW1 was very clear on the conversation he had with 2n(* appellant and I have seen no reason as to why he could concoct an untrue story against the 2nd appellant. The 2nd appellant’s defence story was highly improbable. However, as rightly argued by the learned State Attorney the above evidence was insufficient to found conviction. Neither PW1 nor PW2 told the trial court that the 2nd appellant was seen and identified at the scene of crime or even at Mkuti area. His conviction can not j be sustained. His conviction is accordingly quashed and sentence set aside. 10 Regarding the 1st appellant, this appeal must stand or fail on only one issue which is whether or not he was properly identified by PW1 and PW2 who were the only identifying witnesses. The charge sheet alleged and PW1 and PW2 established in evidence that the offence was committed at night. The evidence implicating the 1st appellant with the charge was entirely of identification, and it is a settled principle of law that such evidence must be absolutely watertight to justify a conviction. I am in agreement with the 1st appellant and the trial

court record is clear that at the time PW1 gave evidence in court he was blind. His dock identification of the 1st appellant was, by itself, not sufficient to warrant conviction for he did not tell the trial court how he identified the 1st appellant who was then 1st accused to be one Hamisi Lambani. But as rightly argued by the learned State Attorney, PW 1 told the trial court that he knew Hamisi Lambani (1st appellant) as the one who hired him lit Mkuti area to take him to Mkarango village and that he knew the 1st appellant prior to that day because he used to hire him. PW1 also gave a detailed explanation on how the 1st appellant hired him at Mkuti and on the way to Mkarango, the appellant stopped him at. Uwanja wa fisi where the 1st appellant met some people and while thereat PC Iddi (PW2) appeared and sought to hire him so as to take him to police post but he refused because he was hired by the 1st appellant. PW1 said the 1st appeared before PW2 left. The above evidence shows that PW1 had enough time to have the 1st appellant in observation though the source of light was not established. 11 The evidence by PW1 finds support from the evidence of PW2 who said, at Uwanja wa fisi he found PW1 who had a motorcycle and he sought to hire him but the later refused because he was already hired by the 1st appellant. He (PW2) said while still there the 1st appellant who he knew before

then appeared holding a beer on his hand. He had therefore opportunity to see the 1st appellant. To add more weight that he saw and identified both the 1st appellant and PW1 on 24/ 1/2008 when he heard that PW1 was injured his eyes, he told his elder one Hurbert that he saw PW1 and the 1st appellant the previous night while on the way to Mkarango. As PW1 said he was attacked or held by him neck by the one who hired him so as to take him to Mkarango and had no other trip to Mkarango that night, then the evidence by PW2 fully corroborated the testimony by PW1. The 1st appellant was therefore properly identified by PW1 at Mkuti, Uwanja wa fisi and at the scene of crime. Similarly PW2, on the Evidence, saw and identified the 1st appellant at uwanja wa fisi. Regarding the 1st appellant causing grievous harm to PW 1 the testimony by PW 1 is very clear that while on the way to Mkarango the 1st appellant stopped him at a place near a cashewnut tree so that he could meet certain people and when he stopped tliree other people emerged and the 1st appellant 4 ' attacked him'and held him by the neck and was beaten and his eyes stabbed with a sharp object. Though, as rightly submitted by the learned State Attorney that PW 1 did not 12 mention who stabbed his eyes with a sharp object but the accused was holding him by his neck. The 1st appellant and those three other persons not known by

names by PW 1 had a common intention of assaulting PW1 and the 1st appellant can not, in the circumstances, escape liability on all that happened to PW1. I have seen the PF3 (exhPl) and read the testimony of Dr. Sadick Ali Hassan (PW6) as well read the evidence on record as a whole. It is open that PW1 had his eyes stabbed with a sharp object that resulted in his losing sight completely. The injury caused grievous harm in that it caused a permanent injury to the sense organ of sight (see s.5 of the penal code). Read as a whole, as rightly argued by the learned State Attorney, the 1st appellant raised, in his defence, a difence of alibi The provisions of section 194(4) and (5) of the CPA 1985 the 1st appellant was mandatorily required to give to the court and the prosecution notice of his intention to rely on ; * such defence before the hearing of the case or furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution was closed. As rightly argued by the learned State Attorney, the 1st appellant did not comply with the law. He raised such defence during his defence. Under section 194(6) of the CPA 1985 the trial court had discretion to accord no weight of any kind to the defence. The trial court judgment is silent. It did not completely address I t itself on the issue of the defence of alibi raised by the 1st appellant. That was

improper. The trial court magistrate ought to have indicated in his judgment whether he exercised its discretion by according no weight to such defence instead 13 of remaining mum. However, as rightly argued by the learned State Attorney, even if the trial court was to decide to accord weight to such defence, it could not shake the prosecution evidence against the 1st appellant. The reasons are, first, the appellant was seen and identified by PW1 at Mkuti, Uwanja wa fisi and at the scene of crime and, secondly his defence witnesses (DW3 and DW4) had nothing material to convince the court otherwise. According to evidence on record, I am at one with the learned State Attorney that though DW3 said he visited the 1st appellant and spent a night thereat he did not tell whether the 1st appellant was there and slept in the house. Similarly, DW4 talked about his hiring his motorcycle to the 1st appellant on 17/2/2008 the day the 1st appellant was arrested. The incidence happened on 23/ 1/2008. DW4 said nothing on the whereabout of the 1st appellant on that day. In the circumstances the 1st appellant’s defence of alibi carried no weight and therefore could not tilt the plumb of equilibrium in his favour. The 1st appellant’s conviction with the second-count (offence of causing grievous harm) is upheld. Now the issue of sentences handed down to the appellants by the trial magistrate. i At

the beginning of this judgment I quoted in extenso what the trial’ magistrate stated when sentencing the appellant. He handed one sentense of imprisonment to cover both offences he found each appellant guilty. As rightly argued by the learned State Attorney that was improper. The trial magistrate ought to have handed down sentense for each offence and then at his discretion order such sentences to run consecutively. The provisions of section 312(2) of the Criminal Procedure Act 1985 (Cap 20 R.E 2002) mandatorily requires the trial magistrate, in the case of conviction, to specify in his judgment the offence and the section of the penal code or other law with which the accused is convicted and the punishment to which he is sentenced. Simply stated the trial magistrate is mandatorily required to specify each offence with which the accused is convicted and its sentense. Each offence should go with its sentense. No cumulative sentences is allowed. The sentences of 60 years to cover both offences for each accused (now appellants) was illegal. Such orders are quashed and set aside. * As amply demonstrated above the l sl appellant’s appeal against conviction in count two of causing grievious harm contrary to section 225 of the penal code is dismissed. The sentense meted by the trial court have also been set aside . No sentense was specified for the offence of Grevious harm. Bearing in

mind the serious nature of the injury sustained by PW1, I hereby, under section 366(1) (b) of the CPA 1985, order the 1 st appellant to serve a sentense of seven (7) years imprisonment. The sentense to commence from the date he was sentenced by the trial court. i 15 All said, the appeal by 2nd appellant against conviction and sentense in both counts(offences) is allowed. I had already ordered his release from prison unless held therein lor any other lawful cause. Appeal by 1st appellant against conviction in the first count of armed robbery contrary to section 287A of the pencil code is allowed, the conviction is quashed and sentense set aside. His appeal against conviction on the second count (offence) of grievous harm contrary to section 225 of the penal codc is dismissed. He is to serve a sentense of seven (7) years imprisonment which should commence from the date he was sentenced by the trial court. Judge 19/ 4/2010 Order: Judgment delivered today in the presence of the 1st appellant and in the absence of the 2nd appellant and in the presence of Miss Leopold State Attorney for the respondent republic. it S. A. Lila Judge 19/ 4/2010