SIMON ELINA MBAGA & ANOTHER v REPUBLIC 1991 TLR 138 (HC)

 SIMON ELINA MBAGA & ANOTHER v REPUBLIC 1991 TLR 138 (HC)

Court Court of Appeal of Tanzania - Arusha

Judge Nchalla J

2nd October, 1991

Flynote

Criminal Practice and Procedure - Sentencing - Armed robbery - Sentence of fifteen

years imprisonment illegal - I Sentence of not less than thirty years imprisonment

mandatory.

1991 TLR p139

NCHALLA J

In trial for armed robbery the trial magistrate convicted the appellants and sentenced

them to fifteen years A imprisonment, ordered them to pay compensation for

injuries to the victim, and to make good the items stolen. The Judge, on appeal found

that the conviction was proper but found the sentence of fifteen years imprisonment

to be illegal. B

Held: The sentence of fifteen years imprisonment imposed by the trial court was

inadequate and in disregard to the mandatory provisions of section 5(b) of the

Minimum Sentences Act, 1972 as amended by Act No. 10 of 1989, and therefore,

illegal. C

Case Information

Appeal dismissed.

[zJDz]Judgment

Nchalla, J.: Simon Elina Mbaga filed to this court Cr. Appeal No. 75/91, while Sifuni

Said Ernest filed Cr. Appeal No. 76/91. Both appeals arise from the decision of

Mwanga District court in its original criminal case no 203/90 in D which both

appellants were jointly charged with armed robbery c/ss 285 and 286 of the Penal

Code, Cap. 16 whereupon they were convicted of that offence, and were then each

sentenced to 15 years imprisonment. They E were also ordered to pay 1000/=

compensation each for the injuries P.W.1 sustained at the hand of the appellants. The

appellants were further ordered to make good the items they robbed from the

complainant a description of which is aptly given in the charge sheet.

The appellants are appealing against conviction, sentence and the order of

compensation. Both appellants did not F wish to be present at the hearing of their

appeals, and they did not engage counsel to represent them on appeal. So, the appeal

have been heard in the absence of the appellants.

As the two appeals arise from one and the same original case, it was ordered that the

same be consolidated and that G they be heard together. The two appeals have

therefore been heard in consolidation.

I will refer to the appellants' grounds of appeal in general not seriatim. The

appellants argued that the evidence of H P.W. 1 and P.V.7 is contradictory.

They argued that while P.W.1 said that her children escaped from the house through

the window, P.W.7 the daughter of P.W.1 said that she escaped through the rear door

of their house. The appellants further urged that I P.W.1 the victim of the robbery

in this case could not have properly identified her assailants as she said

1991 TLR p140

NCHALLA J

A that she fell unconscious when she was cut with a panga. The appellants further

urged that the evidence of P.W.4 and P.W. 6, who claim to have seen the appellants

near the house of P.W. 1 after P.W.1 had been attacked and had been taken to

hospital, is not credible and the same is contradictory. Simon Elina Mbaga (whom I

will B hereinafter refer to as the first appellant) argued that the evidence by P.W.4

that he cut him (appellant) with a panga at the scene on the material night is not

established, as P.W.4 did not identify the person whom he claims to have cut with a

panga right at the scene after P.W.1 was attacked. Moreover, the first appellant

charged that the description C of the shirt, which it is alleged the first appellant

wore on the material night and place, is different from the description of that shirt

given by P.W.1, P.W. 3 and P.W.7. P.W.4 said it was a T-Shirts, while the other D

prosecution witnesses said it was a white shirt. "This is a marked contradiction", first

accused urged.

As to the evidence of P.W. 3, the appellants urged that evidence is not true. The

appellants queried why P.W.3 did not identify in court the panga which it is alleged

the appellants borrowed from her on the night in question, and E which it is alleged

the appellants used in attacking P.W.1 and that the same was recovered from the

house of the first appellant.

Mrs. Lyimo, learned State Attorney, gave a reply in support of the appeals. She

submitted that the issue of identification of the appellants by P.W.1 and P.W. 7 at the

scene during the alleged robbery was not resolved. Mrs F Lyimo urged that P.W.1

was too frightened to be able to identify her assailants.

After a close scrutiny of the evidence on record which evidence, I admit, was

inelegantly recorded, and after a careful consideration of the trial Magistrate's

evaluation and assessment of the available evidence and his reasoning G and findings

on that evidence, I am unable to agree with Mrs Lyimo and the appellants that the

trial Magistrate arrived at a wrong conclusion in this case. I am highly satisfied that

the trial Magistrate properly considered the H evidence and also properly directed

himself on that evidence and the law relevant thereto and ultimately rendered a

sound decision.

As the trial magistrate rightly found, the issue of identification of the appellants at the

scene during the commission of the robbery in this case was effectively resolved. The

evidence of P.W.1 and P.W.7 on identification of the I appellants at the scene and

during the incident is watertight, and the same meets the test set by the

1991 TLR p141

NCHALLA J

court of Appeal of Tanzania in its decision in the case of Waziri Amani, 1980 TLR

.250. The incident took place A at night, but in the early hours of night at 8.30 p.m.

when ordinarily most people in the village are still awake. P.W.1 was still preparing

food, that is, dinner, in her house where her children were too. Suddenly, the door of

her house was kicked open, and the two appellants stormed the house. The

appellants were accompanied by another B person called Kilavo who was killed in

another robbery incident after this robbery took place, and so he was not charged in

this case jointly with the appellants. P.W.1 like P.W.7, properly saw and identified

the assailants from a lamp which was then on in the house where P.W.1 was cooking

food. P.W.1 knew all the assailants before, as they C happened to live in the

neighbourhood. The assailants had not disguised themselves in any way. Moreover

the first appellant spoke to P.W.1 before attacking her. It was from very close range,

that is, right at the spot where P.W.1 was cooking food. P.W.1 described the

appellants' attire. The first appellant wore a white shirt, while the D second

appellant wore a red hat and a red jacket. The first appellant was holding a Panga.

The attack lasted for a considerable time.

The description given by P.W.1 and P.W.7 of the appellants' attire during the robbery

tallies with the description of E that attire given by P.W.3 who is an independent

witness whose testimony cannot, and was not, faulted in any way. P.W.3 had met

with the appellants on the material night at about 7.00 p.m. when the appellants went

to her house to borrow a panga, and P.W.3 indeed, gave her panga to the appellants

who then left. An hour or so later F P.W.3 heard the alarm from P.W.1's house

when she was attacked and robbed of her money 20,000/= and other property. It was

in the same village.

After P.W.1 was cut with a panga and after she had been taken to hospital P.W.4 and

P.W.6 remained hiding near G P.W.1's house. As they were hiding there they saw

two persons near P.W.1's house. When they approached them those two persons

started fleeing. P.W. 4 who was armed with a panga threw it on one of these two

fleeing persons and hit him with that panga. Nevertheless these two persons ran on

and disappeared in the bush. P.W.4 H and P.W. 6 looked about at P.W.1's house

and they found a white - blood - stained shirt.

On the same night and about the same time when P.W.1 reached the hospital on the

material night, the 1st appellant also arrived at the same hospital and had his hand cut

with some sharp instrument which could have been a panga, I probably the panga

1991 TLR p142

NCHALLA J

A which P.W.4 had thrown at a person whom he did not properly identify at the

scene. The first appellant alleged that he was cut with a panga by a person he did not

identify when he was going to P.W.1's house in answer to her alarm she had raised on

the material night. This evidence by the first appellant cannot be true. Why did he

flee B when he was cut with the panga. He should have raised an alarm and should

have complained immediately to his fellow villagers who would have supported his

version in this case. To the contrary the first appellant makes a bare assertion which

is not supported by the circumstances of this case.

C When the 2nd appellant's house was searched the red hat and red jacket were

found which resemble to those which the 2nd appellant wore on the material night as

described by P.W.1, P.W.3 and P.W.7.

D On the whole the evidence of P.W.1 and P.W.7 who are eye witnesses to this

robbery, coupled with circumstantial evidence from P.W.3, P.W.4 and P.W.6

together with the exhibits tendered namely exhibits C nd D has established the

charge of robbery on both appellants beyond any shadow of doubt and the conviction

that was E entered on them by the trial subordinate court is well founded and I

upheld it. The contradictions in the prosecution case are not at all fatal.

As to the sentence of fifteen years imprisonment that was imposed by the trial court,

the same, in my view, was F inadequate and in disregard to the mandatory

provisions of section 5 (b) of the Minimum Sentences Act, 72 as amended by Act No.

10/1989. That section now reads, "5 (bb) where any person is convicted of armed

robbery, the court shall sentence him to imprisonment for a term of not less than

thirty years etc."

G No doubt the type of robbery that the appellants committed in this case is armed

robbery. They were armed with pangas which they used to cut P.W.1 successively

and on several parts of her body as evidenced by the doctor's report on PF 3 (Exh. A).

Consequently, I set aside the illegal sentence of fifteen years imprisonment that was

H imposed on each appellant, and I substitute therefor a sentence of thirty (30) years

imprisonment on each appellant and I confirm that sentence. The order of

compensation is proper and I uphold the same.

The appeals lack substance and merit, the same are dismissed in their entirety.

I Appeal dismissed.

1991 TLR p143

A