IN THE COURT OF APPEAL OF
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 10th
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
On
the night of the 22nd 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
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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