IN THE COURT OF APPEAL OF TANZANIA

AT
ARUSHA

(CORAM:
LUBUVA, J.A.,
NSEKELA, J.A., And NSEKELA, J.A.)

CRIMINAL
APPEAL NO. 57 OF 1998

BETWEEN

1.
RAJABU JUMA

2.
AMANIEL MSHANA

3.
MAHAMUDI SHABANI …………………………………….
APPELLANTS

AND

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

(Appeal
from the conviction of the RM’s Court

of
Arusha at Arusha)

(Kapaya,
PRM/Extended Jurisdiction)

dated
the 23^rd
day of March, 1998

in

Criminal
Appeal No. 41 of 1997

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

JUDGMENT
OF THE COURT

KAJI, J.A.:

This
is a second appeal. In the District Court of Kiteto at Kibaya,
RAJABU JUMA, AMANIEL MSHANA and MAHAMUDI SHABANI who are hereinafter
referred to as the 1^st,
2^nd
and 3^rd
appellants respectively were jointly charged with and convicted of
robbery with violence contrary to sections 285 and 286 of the Penal
Code, Cap 16. They were each sentenced to 15 yeas imprisonment and
12 strokes of the cane. They were also ordered to pay LOSERIAN
MOLLEL (PW!) Shs. 150,000/= being money they were alleged to have
robbed him. On appeal to the High Court where their appeal was
transferred to the Resident Magistrate Court of Arusha with Extended
Jurisdiction, the appeal was unsuccessful. Hence this appeal.

Briefly the facts
giving rise to the case were as follows:-

LOSERIAN MOLLEL (PW1)
used to guard the shop of his brother Lemom Mollel. In so doing he
used to sleep in a room which was in that shop.

On 5.2.97 at about
10.30 p.m., while PW1 was in the room, he heard a knock at the rear
door of the shop. He asked as who was knocking. Mahamud (3^rd
appellant) identified himself to be the knocker. PW1 asked him what
he was looking for at that odd hours of the night to what he replied
he had come to deliver a “mzigo” he had been requested by
Lemom Mollel to deliver. Since Lemom Mollel used to send the 3^rd
appellant to deliver “mizigo” at the shop at night PW1
was convinced. He opened the door. He found the 3^rd
appellant standing near the door. Suddenly the 3^rd
appellant pushed him in but he resisted and struggled with him. The
1^st
and 2^nd
appellants swarmed in. The 2^nd
and 3^rd
appellants got hold of PW1 by his neck and pressed him on the bed
while the 1^st
appellant searched the room by throwing the mattress on the floor.
The 1^st
appellant stole Shs. 150,000/= which was hidden under the mattress.
PW1 raised an alarm which was responded to by MUSA ALLY (PW2) and
MOLLO JOHN (PW3). It was PW2 who arrived first.

Just when PW2 arrived
at the door the appellants got out and ran away. PW3 who had also
arrived near the door said he saw the appellants running away from
the shop. PW1 was so much injured by the appellants that he lost
consciousness. He was taken to hospital for treatment (PF3 Exh. P1).
The appellants who were residing in one room were arrested in the
same night although at different times. They were taken to Kibaya
Police Station and later to court where they were charged with and
conviction as above and later their first appeal dismissed.

In this appeal the
appellants who were not represented raised a total of 27 grounds of
appeal in their separate memoranda of appeal and 11 grounds of appeal
in their joint memorandum of appeal. But basically they all revolve
on identification and credibility. The appellants argued that the
conditions at the material time were not favourable for a proper
identification, and that they were not properly identified. The
appellants further argued that since PW1 was pressed on the bed and
later lost consciousness he could not see what happened thereafter,
and that whatever he said happened thereafter before recovery should
not be believed. The appellants further argued that since PW3 found
the bandits on the run he could not identify them, and that his
allegation that he identified them to be the appellants should not be
believed.

In reply Mrs. Ntilatwa
learned Senior State Attorney, who appeared for the respondent
Republic, replied that the appellants were properly identified
through solar power light and moonlight, and that the prosecution
witnesses were credible. The learned Senior State Attorney further
replied that the prosecution evidence was straightforward, and that
what the appellants alleged to be discrepancies were not
discrepancies at all but that the appellants had not understood well
the judgments or proceedings of the courts below.

On sentence, the
learned Senior State Attorney was of the view that the sentence of 15
years imprisonment was improper because the offence charged was
committed by more than one person, and therefore was gang robbery
whose minimum sentence is 30 years imprisonment as provided for by
the Minimum Sentences Act, 1972, as amended by Act No. 6 of 1994.

The crucial issue in
this case is identification, that is, whether in the circumstances of
the case, the appellants were properly identified. It is in the
record that at the scene of crime there was light generated by solar
power, and that the appellants and PW1 were village mates who knew
each other prior to the event. Further that the event from when PW1
opened the door and found the 3^rd
appellant standing, got pushed in, pressed on the bed and the room
searched up to when the appellants fled, took a considerable time.
We are satisfied that under the circumstances, PW1 properly
identified the appellants. We have noted from the evidence of PW1
that the 3^rd
appellant used to deliver goods at the shop at night from Lemom
Mollel. That is why on the material day PW1 did not hesitate to open
the door when the 3^rd
appellant said he had a “mzigo” from Lemom. Just when
PW2 arrived at the door where there was full light from the solar
power the appellants got out and ran away. They were his village
mates whom he knew before. Under the circumstances we are satisfied
there was nothing which could have prevented PW2 from making a proper
identification of the appellants. We are satisfied PW2 properly
identified the appellants.

PW3 arrived when the
bandits were on the run. He said he identified them to be the
appellants through the solar power light and moonlight. Since he did
not elaborate how far he was, there are some doubts in our mind
whether he properly identified them. We award the appellants the
benefit of doubt. But even if this evidence is discarded, the
evidence of PW1 and PW2 proved satisfactorily the identification of
the appellants. Their evidence satisfied the requirements laid down
by the Court in WAZIRI AMANI V R (1980) TLR 250 in respect of
identification.

The appellants
complained that PW1 could not have known what happened when he was
unconscious, and that there were some contradictions on the time PW1
was taken to hospital and when he returned from hospital. We have
carefully considered this. What happened while PW1 was unconscious
was well explained by PW2 and PW3. The discrepancy in time factor is
minor as it did not go to the root of the case. It did not vitiate
the merit of the case.

As far as sentence of
15 years imprisonment and 12 strokes is concerned, we agree with the
learned Senior State Attorney that it was improper. As properly
stated by the learned Senior State Attorney, where the offender is in
company with one or more persons, the minimum sentence is 30 years
imprisonment, as provided for under Section 5 (b) (ii) of the Minimum
Sentences Act, 1972, as amended by Act No. 6 of 1994. In that
respect we set aside the sentence of 15 years imprisonment and 12
strokes of the cane and substitute with a sentence of 30 years
imprisonment each.

In the event, and for
the reasons stated, we dismiss the appeal in its entirety.

DATED at ARUSHA this
day of 2004.

JUSTICE OF APPEAL

JUSTICE OF APPEAL

JUSTICE OF APPEAL