Salehe Salum Chuku & another v. Republic, Cr app no 82 of 2004 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J,A, MSOFFE, J,A, AND KILEO, J,A,)

CRIMINAL APPEAL NO. 82 OF 2004

SALEHE SALUM CHUKU AND ANOTHER…………APPEALLANTS

AND

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

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

(Kimaro, J.)

Dated the 7^th day of May, 2002

In

Hc. Criminal Appeal No. 34 of 2001

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

JUDGMENT OF THE COURT:

20 February & 12 March, 2007

MUNUO, J,A.:

        In Temeke District Court Criminal Case No. 544 of 2000, both appellants were jointly and together convicted of robbery with violence c/ss 285 and 286 of the Penal Code, Cap 16.  The trial court sentenced the appellants to 30 years imprisonment.  They were, furthermore, ordered to pay Sh. 150,000/= compensation to the complainant. Aggrieved, the appellants unsuccessfully lodged Criminal Appeal No. 34 of 2001 in the High Court of Tanzania, before Kimaro, J.  Hence this second appeal.

        The complainant, P.W.3 Alex Machele, stated that on the material night he was driving from P.W.2’s shop at Temeke.  In P.W.3’s saloon car were his wife, P.W.1 Mary Machele, and his brother, P.W.2 Hilary Ndemfoo Urassa.  A short distance from the said shop, about 10 metres away, P.W.3 saw some 20 gangsters staggering pretending to be drunk.  He hooted but they did not give way.  As he slowly drove past, some gangsters jumped onto his car’s bonnet and roof while others hang to the doors.  The gangsters were armed with pangas and knives.  They assaulted P.W.3 and P.W.1 as well as P.W.2 and seized from them cash, a necklace and wrist watches. The victims identified the robbers by electric light from a nearby mosque and houses in that the suspects were residents of the area.  P.W.2 stated that he had known the appellants for over four years so he had no difficulty identifying them on the material night.

        Because the victims knew the appellants by name, they reported the incident to the police.  The appellants were subsequently arrested and charged with the present offence.

        P.W.1 Mary Machele suffered injuries on her eye and her lower teeth were loosened.  She tendered her PF3 as Exhibit P1.  Moreover, the windscreen of the complainant’s car was damaged by the robbers.

        The appellants denied the charge.  In this second appeal, the appellants filed five grounds of appeal in effect contending that they were not properly identified by the complainant, that police statements were not recorded, that the PF3, Exhibit P1, was admitted in contravention of the provisions of Section 240 (3) of the Criminal Procedure Act, Cap 20 because the trial magistrate did not inform the appellants their right to have the doctor summoned to testify on the PF3; that the evidence of P.W.1 lacked merit and that their visual identification was weak so they were wrongly convicted.

        In response, Mr. Mganga, learned State Attorney, supported the conviction. He pointed out that the prosecution witnesses identified the appellants by their names so there was no possibility of mistaken identity considering that the scene of crime was lit with electricity, which is to say, the conditions of identification were favourable and visibility was good.  In view of the watertight identification of the appellants, the learned State Attorney observed, the conviction was correctly grounded.

        As for the appellants’ complaint relating to non-compliance with the provisions of Section 240 (3) of the Criminal Procedure Act, Cap 20, Mr. Mganga stated that the said PF3 should be excluded because the trial magistrate omitted to explain to the appellants, their right to have the doctor called to testify on the PF3.

        Furthermore, the learned State Attorney, contended, even after excluding the PF3, the prosecution evidence fully supports the conviction in view of the strong identification evidence on record so the appeal should be dismissed in its entirety.

        The issue is whether the appellants’ identification was watertight.

        We have no doubt whatsoever that the identification of the appellants by P.W.1, P.W.2 and P.W.3 was watertight.  P.W.2 noted that he had known the appellants for the last four years because they resided within the area where he operates a shop.  Besides, the scene of crime was lit with electricity so visibility was good and the conditions of identification were favourable.  Under the circumstances there were no possibilities of mistaken identity.

        For those reasons we find no merit in this appeal.  We accordingly dismiss the appeal.

        DATED at DAR ES SALAAM this 12^th day of March, 2007.

E. N. MUNUO

JUSTICE OF APPEAL

View other posts for your benefit...