20150319 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA ' .AT DAR ES SALAAM CRIMINAL APPEAL NO.94 OF 2013 Originating from the Distict court of Kinondoni in Criminal case NO. 215 of 2012 Kihawa SRM ~SUPH FETI BANALI @ MASTER ............. 1 sTAPPELLANT TITO SAYAN GO .. ...4. ••••••••••••••••••••••••••••••••• 2 NoAPPELLANT V REPUBLIC ... .............................................. RES PO ND ENT Date of last. Order 12/12/2014 Date of Judgment 19/3/2015

JUDGMENT A. Shangwa. J. The Appellants Yusufu Feti Banali and Tito Sayango were charged in the District Court of Kinondoni on two counts. On the 1st count, they were charged with the offence of Conspi;racy C / S 384 of the Penal Code Cap 16 R. E 2002. On the 4nd count, they were charged with the offence of Armed Robbery C/S 278 A of the Penal Code Cap16 R.E 2 2002. They were convicted on both counts and sentenced as follows: - On 1st Count: - 5 years in jail. On 2 nd count: - 30 years in fail. Bath sentences were ordered to run concurrently. Being aggrieved by both conviction and sentence, they filed an appeal in this Court based on seven grounds blaming the trial Magistrate for failure to assess the evidence given by the Appellants in their defence, for convicting them on evidence which did not prove the offences charged beyond reasonable doubt, for failure to take into consideration mitigating factors, for convicting them without exhibit for committing the offence of Armed Robbery and without having been identified at the identification parade. The appeal was argued by way of written submissions. Whereas, Mr. Kusalika for the Appellants filed his written 3 submissions as ordered by the Court, the Respondent did not lodge any reply submissions. First of all, Mr. Kusalika contended that the Respondent totally failed to establish the offences charged against the Appellants

beyond reasonable doubt. He submitted that the offence on the 2 nd Count was committed during the night time and that the complainant P. W 1 did not establish as to whether or not there was sufficient light to identify the Appellants. He cited the case of Waziri Amani V. Republic [1980] TLR 250 in which it was held inter -alia that no Court should act on the evidence of visual identification unless all possibilities of mistaken identity are eliminated and the Court is fully satisfied that the evidence before it is absolutely watertight. Secondly, Mr, Kusalika contended that in proving the offence of Armed Robbery, the Respondent did not produce 4 any exhibit that was used in the Robbery incident in issue such as a panga or a gun. Thirdly, Mr. Kusalika contended that each of the Appellant was sentenced without considering the factors in mitigation which were offered by the Appellants. Mr. Kusalika prayed the court to allow the appeal, quash the conviction and set aside the sentence which was imposed on the Appellants. As already mentioned, the Respondent was given opportunity to file his written reply submissions but he did not use it. In brief, the facts of this case are that on 6 th June, 2012 at Mbezi area Dar es - Salaam, the 1st Appellant hired a Bajaji with Reg. NO. T 327 BVW the property of one Micheal Kayanda which was being driven by one Damian Anthony for business

purposes. The 1st Appellant asked the said 5 Bajaji driver to take him to Mbezi kwa Beda. He agreed. On their way to the said place, when they reached the valley area, the 1st Appellant turned against him for the purposes of stealing his Bajaji. Suddenly, other people came from the bush and joined the 1st Appellant. They beat him, tied his hands and legs, threatened him and stole the Bajaji from him. Thereafter, he went to the road from where people helped him and took him to Mbezi Police Station where he reported the incident. Later on, the 1st Appellant and three others including the 2 nd Appellant were intercepted by the Police at Oysterbay area with the Bajaji which was stolen from him. Two of them run away. The 1st Appellant and 2 nd Appellant were arrested and taken to the Police station with the Bajaji which they robbed from Damian Anthony. They were locked up. Later, they were taken to Court at Kinondoni. The charges were read over to them but they denied them and were tried. 6 Before the trial court, the prosecution called five witnesses to prove the offences charged. P.W.I was Damian Anthony. This witness told the trial court that he is a Bajaji driver and that on the fateful day, the 1st Appellant hired him at Mbezi Mwisho and asked him to take him at Mbezi kwa Beda area and that on the way at the Valley area, he was attacked by the 1st Appellant and three others who

emerged from the bush and beat him, torn his shirt, tied up his hands and legs, threatened him with a knife and went away with the Bajaji he was driving. He said, thereafter, he reported the incident at Mbezi police station and that later he was informed that four People had been intercepted by the Oysterbay police and the Bajaji seized from them and taken to the police station at Oysterbay. 7 P. W 2 Damas Kayanda told the trial Court that Damian Anthony (P.W.1) is his long time Bajaji driver and that the Bajaji which was robbed from him belongs to him. He said, it is red in colour with Reg NO. T 327 BVW. He tendered its Registration card in evidence. P.W.3 E. 5247 D/C Elia told the trial Court that he is a police investigator and that on 7 th June 2012, he went to Oysterbay police station and interrogated the Appellants and that during interrogation, they admitted to have been involved in robbing the Bajaji from P.W.1. P.W 4 F. 5673 D/C Chana told the trial Court that he is a CID police officer stationed at Oysterbay police station and that on 6 th June, 2012 at about 22.45 hours, he was on patrol with another police officer and that while on patrol they received information through radio call that a Bajaji red in colour with Reg N0.T327'BV W had been stolen at Mbezi 8 area. That after sometimes, they saw four people in the said Bajaji which they followed up and that it

stopped at International School area Oyster bay. That when it stopped the four people who were inside got down and that they managed to arrest two of them who are the Appellants. He identified them from the dock. That after arresting them, the Bajaji was seized and they were taken to the police station at Oysterbay. P.W 5 D. 8278 D /C James told the trial Court a similar story with P.W4 as they were together on patrol when they arrested the Appellants and seized the Bajaji robbed by the --- Appellants from P.W 1 at Mbezi area Dar es- Salaam. During their respective defences, the 1st Appellant Yusufu Feti Banali@ Master told the trial Court that he was arrested at Kinondoni studio following a conflict between a 9 bus conductor and other people who were arrested with him and taken to the police station at Mbezi from where he was taken to the trial Court and charged with the offence of Armed Robbery. The 2 nd Appellant Tito Sayango told the trial Court that he was arrested on 6 th June, 2012 from his girlfriend's house at Mbezi Msigani and taken to Mbezi Police Station from where he was charged with having committed the offence of Armed Robbery involving theft of a Bajaji an offence which he did not commit. On the evidence which was taken by the trial court, I find that both Appellants did conspire to steal the Bajaji -- owned by P.W.2 Damas Kayanda which was in possession of its

driver P.W. l Damian Anthony. The chain of events does show that there was conspiracy by the two Appellants and two others who escaped arrest to steal P.W. l's Bajaji with Ref. T. 327 BVW. The chain of events run from the time when 10 the 1st Appellant contacted P.W. 1 at Mbezi Mwisho to drive him to Mbezi kwa Beda. By then, he was alone. On the way to Mbezi kwa Beda, the 1st Appellant turned hostile to him. That was at the valley area. Then, three other persons emerged from the bush and joined the 1 st Appellant in the Bajaji. These persons who included the 2 nd Appellant had a common intention and plan to steal the Bajaji in issue from P.W. l at the valley area. In the execution of their plan, they attacked P. W 1 from the said spot as earlier planned by them and violently took the Bajaji from him. Thanks be to God that they were intercepted by the police in Oysterbay area and arrested. Two of them escaped arrest. I hold therefore that both the 1st and 2 nd Appellants were properly found guilty and convicted of the offence of conspiray C / S 384 of the Penal Code Cap 16 R.E. 2002. 11 In my view, the evidence on the trial court's record does not prove beyond reasonable doubt that the Appellants are guilty of Armed Robbery. Although P.Wl stated that at the time of the incident, he was threatened with a knife, he did not describe how the knife with which he was threatened looked like. Was it a pocket knife, a shealth knife, a carving knife or a machete? He did not explain. Therefore, there is doubt as to whether or not the Appellants committed Armed Robbery. What is evident, however, is that the Appellants committed the offence of Robbery with violence C / S 285 of the Penal Code Cap 16 R.E.

2002. The evidence given by P.Wl leaves no doubt that the Appellants robbed the Bajaji ---- in issue from him through violence by beating him, tying his hands and legs. In this case, the case of Waziri Amani V. Republic which was cited by Mr. Kusalika on the weight of evidence based on visual identification is not applicable. 12 This is because the Appellants were caught red handed after rob bing the Bajaj i in issue from P. W.

1. In my opinion, as the Appellants committed the offence of Robbery with violence, it was wrong for the trial Magistrate to convict them of the offence of Amed Robbery. For this reason, I hereby alter the Appellants' conviction from that of Armed Robbery to that of Robbery with violence. Now did the trial court take in to consideration the factors in mitigation before sentencing the Appellants on both counts. The trial Court's record shows that during mitigation the 1st Appellant informed the trial court that he has no comment. The 2 nd Appellant informed the trial Court that he was still very young and a first offender. In sentencing the Appellants, the trial Magistrate, Kihawa RM recorded as follows and I quote 13 "Mitigation considered. Accused persons are sentenced to serve 30 years imprisonment each for the 2 nd count and 5 years for the 1st count. Sentences to run concurrently. The above quotation shows that the Appellants were heard in mitigation. The 1st Appellant had no mitigation factors to offer for consideration by the trial Court. The mitigation factors which were offered by the 2 nd Appellant were considered by the trial Court and after doing so, the trial Magistrate imposed sentence which she considered fit. However, on my part, after finding that the Appellants were wrongly convicted of Armed Robbery instead of Robbery with violence and as both of them are

first offenders, I hereby set aside the sentences imposed on them by the trial court and I sentence them as follows:- 14 On 1st count:-3 years jail. On 2 nd count:-Syears jail. Sentences to run concurrently. In summary, the Appellants' appeal against conviction on the first count has been dismissed. Their conviction on the second count has been varied and the sentences on both counts have accordingly been reduced. ~ A.Shangwa

JUDGE 19/3/2015 - Kusalika for the Appellants. The Respondent is absent. ~ A.Shangwa

JUDGE 19/3/2015