Salehe Bakari v. Republic Cr app no 67 of 2007 (armed robbery)

 IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:  MROSO, J,A., KIMARO, J.A. And LUANDA,J.A.)

CRIMINAL APPEAL NO. 67 OF 2007

SALEHE BAKARI…………………………………………APPELLANT

VERSUS

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

(Appeal from the decision of the High Court

 of Tanzania at Tanga)

(LONGWAY,J.)

dated 7^th June 2002

in

Criminal Appeal No. 32 of 2000

………………………

JUDGMENT OF THE COURT

2^nd & 11^th July, 2008

KIMARO, J,A,

         In Lushoto District Court Criminal Case No. 41 of 1999, the appellant, Salehe Bakari, was convicted for the offence of armed robbery contrary to section 285 and 286 of the Penal Code, CAP 16 R. E.2002.  He was sentenced to fifteen years imprisonment.  Subsequent to that, he lodged Criminal Appeal No. 32 of 2000 in the High Court of Tanzania at Tanga which appeal, Longway, J. dismissed in entirety and enhanced the sentence to thirty years imprisonment.  The appellant then lodged this second appeal against conviction and sentence.

         The facts were that the Lunguza village in the District of Lushoto has a dispensary known as Lunguza (RDDA). On 5^th of May, 1999 Luis Salehe (PW2) and Helena Zahabu (PW3) who were employed as a laboratory attendant and nurse respectively at the  dispensary,  were on duty.  According to PW2 the appellant who is well known to him as they reside in the same village, visited the dispensary with two young persons not familiar to PW2.  They asked PW2 to do urine examination of which he did, and upon receiving the results they left.  On the following day, on 6^th May 1999 in the afternoon, the appellant visited the dispensary again in the company of the same persons.  One of them had urine specimen for examination.  As PW2 took a microscope to do the laboratory test, the appellant, assisted by the other persons, suddenly held him tightly on his ribs, and the appellant snatched the microscope from him and ran away.  As PW2 raised an alarm, PW3 responded and joined him in running after the appellant and the other culprits but they did not manage to arrest them as they disappeared into the bush. The matter was reported by Christina Mremia (PW4), the R.M.A in charge of the dispensary, to the village authorities and later to the police.  In his efforts to trace the appellant, PW4 had traveled all the way to Dar es Salaam to trace the appellant when he was tipped that he was seen in Dar es Salaam.  Unfortunately he was not able to trace him then, but the appellant was later on apprehended by the police of Msimbazi Police Station in Dar es Salam and was returned to Lushoto and then charged with the offence of armed robbery.  The microscope was never recovered.

          During the trial the appellant raised the defence of alibi under section 194 of the Criminal Procedure Act, 1985 [CAP 20 R.E.2002], saying that on the date when the offence was alleged to have been committed he was at Daluni  in Muheza District where he traveled to the previous day, and on 8^th May 1999 he traveled to Dar es Salaam where his sister had secured  employment of a turn boy  for him.  The trial court rejected his defence saying that it was an after thought.  The appellant was convicted and sentenced as indicated earlier.  As already stated his appeal to the High Court was dismissed.

         The appellant filed seven grounds of appeal plus three additional ones before the hearing of the appeal. The first was on the prosecution witnesses who testified.  He contended that since they were all employees of the dispensary, they had an interest to serve.   His second ground of appeal was on his identification.  He claimed that he was not properly identified.    In the third one he complained that his conviction was based on the weakness of his defence rather than the strength of the prosecution evidence. The complaint on the fourth ground was on the sentence that the High Court enhanced.  He said it was unlawful because the offence of robbery was not proved beyond reasonable doubt.  Lastly on his additional ground, he complained that the attendance register indicating the patients who were treated at the dispensary on the date the offence was alleged to have been committed was not tendered in Court to show that he was treated at the dispensary on that day.

         At the hearing of the appeal the appellant appeared in person.  He did not elaborate on his grounds of appeal.  He left that work to be done by the Court.   Mr. Oswald H. Tibabyekomya, learned State Attorney, appeared for the respondent.  He supported the conviction and sentence.   He opted to argue the grounds of appeal together.   Speaking on the identification of the appellant, the learned State Attorney said that the conviction of the appellant was based on the identification of the appellant at the scene of crime by the evidence of PW2 and PW3.  The witnesses, Mr, Tibabyekomya said, knew the appellant before and so there could not have been any mistaken identity on his identification considering that it was during daytime.  He cited the case of Mohamed Selemani Dilu V R.   CAT Criminal Appeal No. 80 of 2005 (unreported) to support his argument.  As regards the prosecution witnesses being all employed to work at the dispensary, the response by the learned State Attorney was that it was the credibility and reliability of their evidence which was important and not their work relationship.   

         Commenting on whether the ingredients of the offence of armed robbery was proved the learned State Attorney was positive that the evidence of both PW2 and PW3 proved that force was used in the process of taking the microscope.  Regarding the propriety of the sentence that was imposed on the appellant, Mr. Tibabyekomya observed that the Written Laws (Miscellaneous) Amendments No.6 of 1994 amended the Minimum Sentences Act, 1972 by imposing a sentence of thirty years for the offence of robbery if it is committed in the company of more than one person.  On the complaint by the appellant that he was convicted because of his weak defence the learned State Attorney said it was the prosecution who had the duty of proving the case against the appellant and they discharged that burden.   Responding to the complaint by the appellant that his defence of alibi was disregarded, the learned State Attorney said that since the appellant did not give a prior  notice under section 194 of the Criminal Procedure Act, 1985 that he was going to raise that defence, the trial magistrate rightly disregarded it under section 196 of the  same act.   He prayed that the appeal be dismissed.

         From the grounds of appeal raised by the appellant, they all boil down to the issue of whether the charge against the appellant was proved.  Starting with the issue of identification, the evidence of PW2 and PW3 was straight forward.  They both knew the appellant before as he was living near the dispensary where the microscope was robbed.  Moreover, he was a neighbour of PW3.   The offence was committed at broad daylight.   There was no way in which the witnesses could have mistaken the identity of the appellant in the circumstances.  See Waziri Amani Vs R [1980] T.L.R.250.  Apparently the learned State Attorney did not respond to the ground of appeal raised in respect of the attendance register for recording the names of patients who attend at the dispensary.  We have perused the record and we are satisfied that the need for such evidence did not feature in the trial court proceedings.  In this respect it cannot be of any help to the appellant now to speak of the desirability of such evidence given the evidence of PW2and PW3 against him, particularly when we have no reason whatsoever to doubt their credibility.

         As regards the claim by the appellant that the prosecution witnesses, all being employees of the dispensary had an interest to serve, we entirely agree with the learned State Attorney that what was important for them was to bring credible and reliable witnesses to establish their case.  Since the offence was committed at the dispensary, where else were the prosecution witnesses expected to come from?  It would have been ridiculous for the prosecution to call witnesses who knew nothing at all about the commission of the offence to testify. Moreover, the fact that PW4 took her time and spent expenses to travel to Dar es Salaam when she was tipped that the appellant was seen in Dar es Salaam shows that there was no collusion on the witnesses but rather it was an indication of the interest they had   in the recovery of the stolen microscope.

         On the defence of alibi by the appellant, that it was not considered, it is true the trial magistrate was required to state reasons for rejecting it, but nevertheless that omission did not affect the prosecution case in the light of the identification of the appellant that was made by PW2 and PW3.  We will also add that his defence of alibi tended to strengthen the prosecution evidence by PW4 that he run away after the commission of the offence, probably to escape being arrested.

         The appellant’s complaint that he was convicted because of weakness in his defence is not supported by the record.  Neither the judgment of the High Court nor that of the trial court indicated that the appellant was convicted because of weaknesses in his defence.  As correctly stated by the learned state Attorney, in criminal cases it is the prosecution which has the burden of proving the offence against an accused person. 

         The last ground was on the sentence which was imposed by the first appellate court.  The testimony of PW2,  the victim of the robbery, was that the appellant, assisted by the two  young persons who were in his   him company  when he went to the dispensary held him tightly,  squeezing his ribs and then the appellant  took away the microscope and ran away.  This piece of evidence shows that force was used by the appellant and his colleagues in stealing the microscope.

 Admittedly the appellant was wrongly charged with the offence of armed robbery because at the time the offence was committed, that offence of armed robbery was not in existence then.  The right provisions of the law were invoked but there was an irregularity in that a wrong offence was indicated in the charge sheet. Instead of charging the appellant with the offence of robbery he was charged with armed robbery which did not then exist.  We agree, as suggested by the learned State Attorney, that the irregularity is curable under the provisions of section 388 of the Criminal Procedure Act, 1985.  Moreover, we are certainly convinced that no miscarriage of injustice was occasioned on the part of the appellant.

The High Court enhanced the sentence to thirty years because the appellant committed the offence in the company of the two youths who accompanied him to the dispensary.  In our considered view the fist appellate court acted properly.  As correctly submitted to us by the learned State Attorney, the Written Laws (Miscellaneous Amendment) Act No. 6 of 1994 which amended the Minimum Sentence Act, 1972 stipulated that where the offence of robbery is committed in a company of more than one person the mandatory minimum sentence is thirty years.  Since the appellant committed the offence in the company of the two young persons who were with him,  the first appellate court correctly enhanced the sentence that was imposed by the trial court  to thirty years.

         Given the evidence that was adduced by the identifying prosecution witnesses, coupled by that of PW4 who had to travel all the way to Dar es Salaam to try to trace the appellant we have no doubt that it was the appellant who committed offence of robbery and he was properly sentenced.  The appeal has no merit.  It is dismissed.

         DATED at TANGA this 4^th day of July, 2008.

J.A.MROSO

JUSTICE OF APPEAL

N.P.KIMARO

JUSTICE OF APPEAL

B.M.LUANDA

JUSTICE OF APPEAL

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

(F. L. K. WAMBALI)

REGISTRAR

View other posts for your benefit...