20100623 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 82 OF 2007 (Originating from Cr. Case No. 18/2006 District Court of Kilosa) SALEHE MOHAMED! ZARAU HERMANI @ WEGA

VERSUS

REPUBLIC Date of last Order 5/12/2009 Date of Judgment 23/6/2010

JUDGMENT Shangwa, J. This appeal was jointly filed by two Appellants namely Salehe Mohamed who shall hereinafter be referred to as the first Appellant and Zarau Hermah @ Wega who shall hereinafter be referred to as the second Appellant. Both 1 j le Appellants were charged in the District Court of Kilosa with _, the offence of Armed Robbery C/SS 285 and 286 of the _ Penal Code. They were convicted and sentenced to 30 years imprisonment. They were facing two counts for a similar offence. On the 1 st count, the 1 st and 2nd Appellants were jointly charged with five other persons. On the 2 nd count, the 1 st Appellant was charged with six other persons except the 2 nd Appellant. On the first count, the prosecution alleged that on 6 th January, 2006- at about 1.30 hours at Magomeni area within Kilosa District, the Appellants and five other persons stole- one bicycle valued at Shs. 70,000/=, ten pairs of shoes valued at Shs. 60,000 / = and cash Shs. _400,000 / = the properties of HASHIMU RASHID and immediately before and after such stealing one of them shot one bullet in the air in order to obtain and retain the said properties. 2 '1"r On the second count, the prosecution alleged that on 6/1/2006 during the night time at Magomeni area within Kilosa District, Morogoro Region, the 1st Appellant together with six other persons did steal one short gun make HELL - LONDON mark No. 1151.1

the property of Ally Mussa Mtolela and immediately after stealing it, they fired one bullet in the air in order to retain the same. As already mentioned, both Appellants were convicted of the offence charged and each was sentenced to 30 years - imprisonment. Being dissatisfied with both conviction and - sentence they have appealed to this court. In their joint Memorandum of Appeal, the Appellants lodged the following complaints:- 3 .· . .,. ...,........,......_,,,_ J'I First, that they were convicted by the trial Magistrate on poor identification evidence of P.W.1 and P.W.2 at the scene of crime. Second, that the trial Magistrate arrived at its decision by relying on the prosecution's evidence and without evaluating the evidence given by the defence. - Third, that the trial Magistrate was -not dfligerit--inthe performance of his judicial work. Fourth, that the Appellants were not found with any of the stolen properties. The learned State Attorney Mrs. Mwera supported the Appellants' conviction. She submitted that they were properly identified by P.W.1, P.W.2 and P.W.5. She said that these witnesses knew them earlier before and that there was electricity light and that the. assault took long to enable P.W. l, P.W.2 and P.W.3 recognize them and that the 4 decision of the trial court is supported by evidence on record. The first ground of appeal raises an issue as

to whether or not the Appellants were properly identified at the scene of crime. I have gone through the evidence given by P.W.l, P.W. 2, P.W. 3, P.W.4, P.W.5, P.W.6 and P.W.7 and I am satisfied that the Appellants were identified by those witnesses because they knew them earlier before the incident. At the time of the incident, there was electricity light and the 2 nd Appellant was seen holding a gun which he fired in the air to scare people from approaching at the scene of crime. That is at the houses of P.W.l HASHIMU RASHID and P.W. 6 ALLY MUSA MTOLELA which were broken into during the night by a group of robbers who included the Appellants. 5 The second ground of appeal raises an issue as to whether or not the defence evidence was evaluated by the trial Magistrate. I have gone through the typed judgment of the trial Honorary Magistrate A.J. Mapui:da, and I have found that he did evaluate the defence evidence at page 3 of his judgment last paragraph where he starts his sentence by remarking that the accused persons denied to have committed the offence and ends by saying that he was satisfied that the charge against them was proved beyond reasonable doubt. The third ground of appeal raises an issue as to whether or not the trial Honorary Magistrate was diligent in the performance of his judicial functions and the fourth ground of appeal raises an issue as to whether or not

the trial Honorary Magistrate was correct in convicting them of ----- ----the-offence -charged--without. e'lidenc_e of being Jounq._'Yith_ 6 any of the properties which were stolen from the complainants' houses. First of all, I will consider the issue raised in the fourth ___ g:r_q--g.n_d_ -9!_ appeal. In my opinion, it is not necessary in law that before convicting any person who has been charged with the offence of Armed robbery, there should be evidence of being found with the property or properties that are alleged to have been stolen during the robbery incident. This is because in most cases, after committing an offence involving stealing properties, the offenders do hide the stolen properties. There is no wonder therefore that the Appellants were not found with any of the properties which they stole during the robbery incident. 7 Coming back to the issue raised in the third ground of appeal, I think that the Appellants are wrong in submitting that the trial Honorary Magistrate was not diligent in the performance of his duties. I think that he was diligent in doing so except that he went wrong when he reduced the two c~unts -into 6ne count-and sentenced the Appellants on __ one count. As I mentioned earlier in this judgment, the 1 st Appellant was faced with two counts i.e the 1 st and 2nd counts. The 2 nd Appellant was faced with one count only i.e the 1st count.

Therefore, the 1st Appellant was supposed to be sentenced to 30 years imprisonment on the 1st count - - and to 30 years imprisonment on the 2 nd count with an order that the sentence should run concurrently. The 2 nd Appellant was correctly sentenced to 30 years imprisonment on the 1 st count alone. For the reason I have given above, I order that the 1st Appellant should serve a sentence of 30 years imprisonment on the 1 st count and a 8 ·sentence of 30 years imprisonment on the 2 nd count and the sentences should run concurrently. All in all, I dismiss this appeal in its entirety for lack of merit. ~ A.Shangwa

JUDGE 23/6/2010 Delivered in open court this 23 rd day of June, 2010 in the presence of the Appellants and Ms Faraja George for the - .,.. Respondent .

JUDGE 23/6/2010 ) 9