Abrahamani Mapunda & 3 others v. Republic, Cr no 114 of 2002 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J, A, KAJI, J, A, AND KIMARO, J, A.)

CRIMINAL APPEAL NO. 114 OF 2002

ABRAHAMANI MAPUNDA AND 3 OTHERS…………APPELLANTS

AND

THE REPUBLIC………………………………………….RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Dar es Salaam)

(Ihema, J.)

Dated the 10^th day of June, 2002

In

HC. Criminal Appeal No. 75 of 1999

-------------------------------

JUDGMENT OF THE COURT

11 December, 2006 & 23 March, 2007

MUNUO, J, A.:

The appellants were in Criminal Case No. 122 of 1998 in the District Court of Bagamoyo at Bagamoyo, convicted of robbery with violence c/s 285 and 286 of the Penal Code, Cap 16.  The trial court sentenced the appellants to a term of fifteen years imprisonment.  Aggrieved, the appellants lodged Criminal Appeal No. 75 of 1999 in the High Court of Tanzania at Dar es Salaam.  The said appeal was unsuccessful.  The appellants then preferred this second appeal to challenge the conviction and sentence.

On the night of the 22^nd May, 1998, at about 10.00 p.m. bandits broke into the godown of H. S. Stanley & Sons Ltd. Salt mine at Katami, within Bagamoyo District.  P.W.4 Florence Martin and P.W.5 John Malamba Ndomondo, the two watchmen who were on guard duty at the material godown, deposed that some 20 bandits invaded the salt mine and broke into the godown.  Other bandits tied P.W.4 and P.W.5 with ropes, blind folded them and led them into the bush.  P.W.4 managed to break the ropes and went to report the robbery to P.W.1 Joseph Chiwangu, the salt mine manager.  The latter enlisted the help of neighbours and proceeded to the godown armed with a gun.

P.W.1 stated that his party crept into the godown and therein found a pressure lamp, commonly known as karabai, burning so the godown was well illuminated.  P.W.1 saw the appellants busy looting salt bags from the godown and loading them in a small boat which had anchored about five paces from the godown.

P.W.1, P.W.3, P.W.4 and P.W.5 stated that among the group of 20 bandits, they could identify the appellants who wore shorts and wore no shirts.  The appellants, P.W.1 and the watchmen observed, were familiar persons for they lived at Katami.  They knew their names as well.  Because P.W.1 did not know if the bandits had arms, he shot into the air.  The shooting sent the bandits amok, they ran for their lives and also took the karabai leaving the godown in darkness.  P.W.1 had a large 4 battery torch so he switched it on.  The torch light lit the scene of crime.  Then P.W.1 proceeded to the small boat which appeared flooded with water because it was leaking.  They off loaded the bags of salt.  The small boat then drowned.  By then the police had arrived at the scene of crime.  They photographed the small boat and the photographs were tendered at the trial.  Because the complainant’s party identified the appellants by face and by names, they were traced arrested and charged with the offence of robbery with violence.

The appellants categorically denied the offence.  They respectively narrated how they were arrested, beaten up by the police and were forced to sign statements the police had concocted.

In this second appeal, the appellants filed a joint memorandum which they adopted at the hearing.  In their memorandum of appeal, the appellants contended that the learned judge erroneously enhanced the sentence from the statutory minimum sentence of 15 years imprisonment to 30 years imprisonment considering that unlike P.W.1 and his party, the appellants were not armed with any weapon.  The sentence, the appellants maintained, ought not to have been disturbed by the High Court more so because the Republic did not appeal against the sentence.  The appellants further contended the identification by the pressure lamp and later by torch light was weak and under unfavourable conditions at night. 

The appellants further contended that whereas the watchmen said that the bandits had intonation from Pemba, none of the appellants comes from Pemba so their identification was not water tight.  They also complained that whereas P.W.6 No. E347 Detective Clp Ramadhani stated that P.W.3 led him to discover the boat used in the robbery in Zanzibar, neither the captain of the boat nor the boat itself appeared at the trial which shows that the prosecution did not prove the case beyond all reasonable doubt.  Furthermore, the appellants maintained, the shooting scared the culprits causing them to flee so the complainant and his watchmen could only identify the said suspects from the back which identification was weak and unreliable.  In view of the weak identification evidence, the appellants urged us to allow the appeal.

Ms. Mwanda, learned State Attorney, represented the Republic.  Supporting the conviction and sentence, the learned State Attorney contended that P.W.1, P.W.3, P.W.4 and P.W.5 properly identified the appellants by the pressure lamp light in the godown, before the shooting as the appellants carried and loaded the bags of salt they stole from the godown to the small boat which was five paces from the godown.  Visibility was good and conditions of identification favourable as the bright light of the pressure lamp lit the area to enable the appellants to loot the salt bags and load them in the boat.  The appellants were interrupted by the shooting of gun fire by P.W.1, the learned State Attorney observed, but by then, P.W.1 and his party had already identified the suspects.  Even after the bandits fled away, taking with them the pressure lamp, the learned State Attorney pointed out, P.W.1 lit his big torch and proceeded to the small boat in which the stolen bags of salt had been loaded by the bandits.

On the accomplice evidence of P.W.4 Florence Martin who had initially been charged but the police later dropped the charge against him, the learned State Attorney contended that the evidence of P.W.4 was rightly admitted under the provisions of Section 142 of the Evidence Act, Cap 6 R.E. 2002 which states, inter-alia:

142.        An accomplice shall be a competent witness against an accused person, and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

The learned State Attorney urged us to dismiss the appeal because it is devoid of merit.

The issue before us is whether the appellants were severally, and, or jointly identified beyond all reasonable doubt.

The learned judge considered the issue of the identification of the appellants and held –

……… In his judgment the trial magistrate in my view analysed exhaustively the testimony of the main prosecution witnesses, to wit, P.W.1, P.W.2, P.W.3 and P.W.4 and found as established that those witnesses properly identified the appellants at the scene of crime on the basis of familiarity prior to the robbery and due to existence of favourable circumstances i.e. moon and torch light on the fateful night.  Like the trial magistrate I find it established from the prosecution witnesses that the appellants were properly identified and further that there is corroboration on identification by P.W.1, P.W.3 and P.W.4 who saw the appellants at the scene of crime at different intervals i.e. P.W.3 and P.W.4 were together while P.W.1 came to the scene of crime moments later.

That is indeed the correct position.  The bandits, estimated to be about twenty in number, had with them a pressure lamp, whose bright light properly lit the godown thereby enabling them to steal 600 bags of salt which they loaded in a small boat which was about five paces from the godown.  P.W.1, PlW.3, P.W.4 and P.W.5 identified the appellants among the 20 gangsters.  The watchmen also identified one Marwa who escaped and is at large.  We are satisfied that the conditions of identification and visibility were favourable which was why the appellants were identified by P.W.1 and his watchmen.  Out of the gang of 20 invaders, P.W.1, P.W.3, P.W.4 and P.W.5 only identified the appellants who were familiar persons, they could not identify the strangers.  We are settled in our minds that the identification of the appellants by the bright light of the pressure lamp was watertight so the conviction was properly grounded.

The sentence of thirty years imprisonment is proper because it

was gang robbery.

Under the circumstances we find no merit in this appeal.  We accordingly dismiss the appeal.

Dated at Dar es Salaam this 22^nd day of December, 2006.

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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