IN THE COURT OF APPEAL OF
AT
ARUSHA
(CORAM: KAJI, J.A., KILEO,J.A. And KIMARO, J.A.)
CRIMINAL
APPEAL NO. 209 OF 2006
1. AMIRI ATHUMAN
VERSUS
THE
REPUBLIC…………………………………………………RESPONDENT
(Appeal
from the decision of the High Court of Tanzania
at Arusha)
(Mussa,
J.)
dated 22nd
May, 2oo6
in
Criminal
Appeal No. 76 of 2002
……………………
JUDGMENT OF THE COURT
17th
& 23rd April, 2008
KIMARO, J.A.
This is an appeal against the judgment
of the High Court at Arusha which upheld the decision of the District Court of
Arusha. The appellants and two others,
namely Yahaya Juma and Ariseni Joachim
were jointly charged with the offence of armed robbery contrary to sections 285
and 286 of the Penal Code. Yahaya Juma
and Ariseni Joachim were acquitted but the appellants were convicted and
sentenced to thirty years imprisonment.
In addition they were ordered to pay compensation of Tshs 50.000/- to
the victim of the offence. Being
aggrieved, the appellants appealed to the High Court but their appeal was
dismissed in its entirety.
In
the trial court the case for the prosecution was that on the 27th of
April, 1999 at around 11.00 am the appellants and their co-accused who were
acquitted, stole a TV set, video deck, a bicycle and a sum of Tshs. 20,000/-
belonging to one Eliza Martine.
A
brief summary of the prosecution evidence was that on 27th April,
1999 at around 11.00 am one Eliza, (PW1) a wife of Martin Danford (PW2) was at
home. According to the testimony of PW1,
the 1st appellant who was known to PW1 before, as he had approached
her some weeks back seeking for tenancy at their residence, went to their
house. He was with the 2nd
appellant. PW1 offered them seats and the 1st appellant started to
account for his failure to occupy the room that PW1 rented him. As the conversation was going on, the other
accused persons who were acquitted came in one, after the other at a short
interval, and they were armed. Suddenly
the appellants removed pangas from
their coats and threatened PW1 not to raise any alarm. One of them kept vigil on PW1 in the kitchen
while the others fulfilled their wicked intention of taking the properties mentioned
above. Halima Shabani, (PW4) a tenant of
PW1 was the first one to meet the appellants as they arrived at the premises
and she referred them to PW1. When she
entered into her room the culprits locked her door from outside and it was until
they left, that she called the daughter of PW1 to open it.
The
armed robbery was then reported to PW2 and to the police. Following information
from an informer that the 2nd appellant had a deck and was looking
for a buyer, D4829 Cpl Davis (PW5), in the company of PW2 arrested the 2nd
appellant on 3rd May 1999. Upon interrogation the 2nd
appellant disclosed the persons who were involved; the 1st appellant
being one of them. It was also with the
assistance of the 2nd appellant that all the properties which were stolen
were recovered, and PW3 identified them all; the bicycle and radio cassette by
their serial numbers, and they matched with the receipts for the purchase of
the properties. As for the television set and video deck, PW2 said the receipts
were in the bag that was also stolen. C
1124 D/Cpl Athuman (PW4) recorded caution statements of both appellants and
they admitted their full involvement in the commission of the offence.
Both appellants raised the defence of alibi
but it was rejected. They were convicted
and sentenced as shown above and the first appellate court upheld the
conviction and sentence.
The
appellants raised three common grounds of appeal. Their
first ground of complaint is on their identification. The second ground is that the caution
statement was not taken in compliance with section 50 of the Criminal Procedure
Act CAP 20 R.E 2002 and the last one is the failure by the prosecution to
summon as witnesses the persons from whom the stolen properties were recovered.
At
the hearing of the appeal the appellants appeared in person. Mr. Mapinduzi,
learned State Attorney, represented the respondent Republic.
In
arguing the appeal the first appellant opted to rely only on the grounds of
appeal filed. The second appellant added
other grounds. First, he contended that
PW1 was not a credible witness because she failed to disclose who threatened
her and that her identification was doubtful because of the threat she
encountered. Second, he challenged the
evidence of his arrest claiming that it was contradictory versions given by PW2
who said he was arrested on 6th May, 1999 while PW5 said his arrest
was on 3rd May. 1999. He told
us that he was arrested on 3rd May, 1999. The last one which is also among the grounds
he filed was the time within which his caution statement was recorded. He
complained that his arrest was on the 3rd May, 1999 but his statement was
recorded on 5th May, 1999, beyond four hours after his arrest.
Both
appellants prayed that their appeals be allowed.
On
his part the learned State Attorney supported the conviction and sentence. On the ground of identification, Mr.
Mapinduzi submitted that the identification of the 1st appellant was
not doubtful because PW1 had seen him before when he approach her with a
request for tenancy. Moreover, the
learned State Attorney argued, the incident took a long time and it was at day
time, at around 11.00 am. As regards the 2nd appellant, Mr.
Mapinduzi contended that although PW1 saw him for the first time during the
commission of the offence, she could not have mistaken him, given the fact that
the offence was committed at daytime after PW1 spent sometime with him before
the offence was actually committed, when she was conversing with
the 1st appellant about the tenancy.
The
learned State Attorney submitted further that both appellants gave caution
statements which were recorded in compliance with the law, admitting the
commission of the offence, and the statements were admitted in court without
any objection from the appellants. Besides,
the learned counsel contended, the stolen property was recovered following the
arrest of the 2nd appellant and the caution statements. The learned State Attorney prayed that the
appeal be dismissed as it lacks merit.
Admittedly
this is a straight forward case and we need not detain ourselves. Starting with the issue of identification, we
are settled on our minds that there was no mistaken identity of either of the
appellants. Both appellants went to the
house of PW1 on the date the offence was committed. It was in broad daylight at 11.00 am.
The 1st appellant was known to PW1 before as he had
approached her some weeks back requesting for tenancy. As regards the 2nd appellant he
spent sometime with PW1 as she conversed with the 1st appellant on
the question of tenancy. At that time
there was no threat. PW1’s evidence was corroborated by that of PW4, a tenant
of PW1 who saw them first before they saw PW1. We entirely agree with the
learned State Attorney that the identifying circumstances were excellent and
the claim by the appellants that they could have their identity mistaken is too
remote to be accepted. See the case of Waziri
Amani Vs Republic 1980 T.L.R 250.
The
sequence of events is another relevant factor enhancing our strong stand that
the appellants were properly convicted.
It was the arrest of the 2nd appellant that led to the arrest of the 1st
appellant and the recovery of the properties which were stolen. The arrest came a few days after the
commission of the offence. The 1st appellant wrote a caution
statement on the same date he was arrested and he admitted commission of the
offence. Even if the statement of the 2nd
appellant is discarded on the ground that it was not recorded within the time
prescribed by section 50 of the Criminal Procedure Act, Cap 20 R.E.2002 the
evidence on record was sufficient for his conviction. In view of what has been said about his
identification that will not have absolved him from the conviction and the
sentence that was imposed on him.
In
the event, we find the appeal lacking merit and it is dismissed in its entirety.
DATED at ARUSHA, this 21st
day of April, 2008
S. N.
KAJI
JUSTICE OF APPEAL
E. A.
KILEO
JUSTICE OF APPEAL
N. P.
KIMARO
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(F. L. K. WAMBALI)
SENIOR
DEPUTY REGISTRAR
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