Yahaya Sharif v. Republic Cr app no 51 of 2007 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

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

CRIMINAL APPEAL  NO.51 OF 2007

YAHAYA SHARIF…………………………………..APPELLANT

VERSUS

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

(Appeal from the decision of the High Court

 of Tanzania at Tanga)

(Mkwawa, J.)

dated 25^th January, 2006

in

Criminal Appeal No. 2 of 2005

………………….

JUDGMENT OF THE COURT

20^th & 30 June, 2008

KIMARO, J.A.

         Hamadi Hassani and the appellant were jointly charged in the District Court of Korogwe, as the first and second accused respectively, with the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code.  They were both convicted and sentenced to fifteen years imprisonment each.   On appeal to the High Court Hamadi won but the appellant lost the appeal.

Briefly, the evidence that led to the conviction of the appellant and Hamadi was:  on 5^th December, 2003 at about 2.45 p.m. Florence Kalage(PW1) was returning to her place of work after having  lunch  at her residence.  It was her testimony that as she was walking along Kirikiri area she saw in front of her the appellant and  Hamadi Hassani gazing at her.   She passed the appellant and Hamadi and walked ahead. As she was near the residence of the late Semkiwa she was grabbed from behind.  PW1 could not immediately shout for help because she was slapped and badly squeezed on her neck and throat.  Then Hamadi snatched her handbag which had T shs. 10,000/-and took to his heels.  The appellant then let free PW1 and run away.  PW1 ran after the appellant shouting for help.

 Othman Magogo(PW2) who responded to the alarm raised by PW1 arrested the appellant.  As the appellant was interrogated about the robbery, he said he knew the where about of Hamadi who ran with the handbag.  In the meantime No. 7802 D/CPL Ahamad(PW4) who happened to be passing by with a motor vehicle and saw people running after the appellant and raising an alarm, stopped and arrested the appellant. Peter Majembe (PW5) said he was an eye witness to the robbery and he saw how the appellant and Hamadi grabbed PW1, snatched from her the handbag and ran away.    Beatrice Lazaro (PW3) also saw the arrest of the appellant by PW2 as well as that of Hamadi by PW 4.  According to PW3 Hamadi was arrested in a  room rented by one Mama Mwanaisha and the handbag was recovered from the room of PW3 after Hamadi said that he threw the handbag into that room.  The house had no ceiling.

In their defence Hamadi admitted being at the area where the offence was alleged to have been committed.  However, he denied that he was arrested in the house where PW3 was a tenant.   He said he was arrested by PW4 in a ‘pombe’ shop.  The appellant said that he was picked up from the crowd that gathered to respond to the alarm raised by PW1.

The trial court did not believe the defences of Hamadi and the appellant.  It was satisfied that the prosecution evidence proved the charge of robbery against both Hamadi and the appellant beyond reasonable doubt.  They were sentenced to firteen year’s imprisonment each. 

As indicated earlier, in their appeal to the High Court Hamadi won and the appellant lost.

Still aggrieved, the appellant is now before us protesting his innocence. He has in his memorandum of appeal two major complaints.  The rest are just a narration of facts.    His first ground of complaint is on his identification and the other one is contradiction in the prosecution evidence.

The appellant who appeared in person during the hearing of the appeal opted not to elaborate on his grounds of appeal.   He left the matter to the Court.  However, he attempted to suggest that the evidence weighed more on Hamadi who was acquitted on appeal than himself.   He also tried to associate his arrest with has caste- an Arab. He prayed that his appeal be allowed.

The respondent Republic through representation by Mr. Vicent Tangoh, learned State Attorney, supported the conviction and requested the Court to enhance the sentence because the first appellate court upheld a sentence which is unlawful.

In support of the conviction, Mr. Tangoh said the evidence was properly evaluated and it ruled out any possibility of mistaken identity of the appellant. He said the offence was committed in broad daylight and PW1 had ample time to see the appellant as he saw him as he was going for lunch and it was when PW1 was returning to the office after lunch that the offence was committed.  In the circumstances, where the appellant had no opportunity to run away, the learned State Attorney contended, the question of his identification of the appellant cannot arise.  In such a situation, Mr. Tangoh added, there was no need for an identification parade,

          As regards the allegations by the appellant that there was a contradiction in the prosecution evidence, the learned State Attorney said there was none.  What the evidence showed, Mr. Tangoh submitted, was that PW1 was ambushed, his neck and throat squeezed and her handbag snatched.  PW 5 was an eye witness to the incident. PW1 identified the appellant as the one who squeezed her neck and throat. The appellant was arrested as he tried to run away and he indicated where Hamadi could be obtained and he was indeed found at the very place that the appellant had pointed out. In concluding his submission on this point the learned State Attorney said the evidence left no doubt that it was the appellant who committed the robbery on the complainant.

         On the sentence meted out to the appellant, Mr. Tangoh said it was unlawful.  As the appellant committed the offence while he was with Hamadi, the learned State Attorney contended, the court ought to have sentenced  the appellant to thirty years imprisonment.  He prayed for the dismissal of the appeal and the enhancement of the sentence.

         The case is simple and straight forward.  We entirely agree with the learned State Attorney that the prosecution evidence against the appellant is overwhelming.  The offence was committed in broad daylight and the victim of the offence (PW1) had ample time to see the appellant.   In her evidence she was even able to identify the appellant by the clothes he wore on that day.   PW5 was an eye witness to the commission of the robbery against PW1 and PW2 arrested the appellant as he was running away.  Both PW1 and PW4 said it was the appellant who assisted in the arrest of Hamadi by pointing out to PW4 his whereabouts and indeed Hamadi was found at exactly the same place and the complainant’s hand bag was also recovered but it had lesser money.  In such a situation the appellant’s claim that there was a mistaken identity in his identification is baseless.  In this respect, the complaint by the appellant of a contradiction in the prosecution case or that he was arrested because he was an Arab is not helpful to him, given the nature of the evidence adduced by the prosecution witnesses against him.    Moreover, none of the prosecution witnesses had any grudges with him.

         The appellant also complained on why it was only him who remained behind bars while Hamadi who committed the offence with him and the evidence weighed more on him was acquitted on appeal.  Well, the appellant’s complaint could be genuine and we indeed wonder why the respondent Republic did not file an appeal against his acquittal.  Nevertheless, the appellant cannot rely on this complaint because he participated in the commission of the crime and he is answerable for his acts individually.   Our considered opinion is that the first appellate court correctly upheld his conviction.

         As regards the sentence imposed on the appellant, we agree with the learned State Attorney that the fifteen years imprisonment was unlawful.   Act No. 4 of 2004 which amended the Penal Code introduced section 287A.  The section defines armed robbery and prescribes minimum sentence for the offence of robbery when it is committed under certain circumstances.  For instance, when the offence of robbery is committed by more than one person it is termed armed robbery and the minimum sentence is thirty years.  Since the appellant was in the company of Hamadi when he committed the offence of robbery he ought to have been sentenced to thirty years imprisonment.   We accordingly quash the sentence of fifteen years imprisonment meted out on the appellant and substitute it with thirty years imprisonment.

         Save for the variation in sentence, the appeal is dismissed in its entirety.

         DATED at TANGA this 25^th day of June 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

(W.E. LEMA)

DEPUTY REGISTRAR

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