IN THE COURT OF APPEAL OF TANZANIA

AT
ARUSHA

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

CRIMINAL
APPEAL NO. 84 OF 2001

BETWEEN

YULI
WILBARD……………………………………………………….
APPELLANT

AND

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

(Appeal
from the conviction of the High Court

of
Tanzania at Arusha)

(Munuo,
J.)

dated
the 22^nd
day of October, 1999

in

Criminal Appeal No. 27 of 1999

JUDGMENT
OF THE COURT

KAJI,
J.A.:

The appellant Yuli s/o Wilbard was charged with
and convicted of the offence of armed robbery contrary to sections
285 and 286 of the Penal Code, before Rombo District Court, at Mkuu.
He was sentenced to the mandatory sentence of thirty (30) years
imprisonment.

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

On
21.1.1997, at night, about six bandits invaded the dwelling house of
Amadea w/o Leons Shayo (PW1) by breaking the door using a huge stone.
One of them was armed with a gun. The others were armed with
machetes and clubs. PW1 identified the appellant and 4 others. They
beat her demanding to be given Shs. 1,000,000/= they claimed she had.
They ransacked the house and stole several articles therefrom valued
at about Shs. 215,000/=. PW1 raised an alarm. The bandits dragged
her to a remote area where they sexually assaulted her and raped her.
They fired some shots in the air to scare those who responded to the
alarm. Ezekiel Focas (PW2), MW 316156 Justine Peter Shirima (PW3)
and Fidelis Justine (PW5) were among those who responded to the
alarm. PW2, PW3 and PW5 identified the appellant and 3 others. The
matter was reported to Mkuu Police Station. The appellant was
arrested. His co-robbers escaped and could not be traced.

At
the trial the appellant gave a total denial in his defence which was
rejected by the trial court. He was aggrieved. He unsuccessfully
appealed before the first appellate Court (Munuo, J., as she then
was). He was aggrieved. Hence this appeal.

Before
us the appellant appeared in person, unrepresented. Mr. Mwampoma,
learned Senior State Attorney, appeared for the respondent Republic.

In
his memorandum of appeal the appellant listed seven grounds of appeal
which, in our view, basically revolve on identification and
contradictions.

The
appellant argued that, since the event happened at night, it was
necessary for the prosecution witnesses who claimed to have
identified him to clarify how they identified him under the
circumstances.

The
appellant further argued that, there were some contradictions in the
evidence of PW2, PW3 and PW5 which, in his view, were fatal, which
weakened the prosecution case. It was his submission that the
contradictions should have been resolved in his favour.

On
the other hand Mr. Mwampoma, learned Senior State Attorney, replied
that, the appellant was properly identified through electric light
and moon light, especially that he was known by the prosecution
witnesses prior to the event, and that the event took a long time.
He denied the existence of contradictions; and that if there were any
contradictions, they were minor which did not go to the root of the
case.

The
crucial issue in this case is whether the appellant was properly
identified. The trial court considered the issue at length. It
observed that there was electric light in PW1’s house which
enabled PW1 to identify the appellant who was her village mate, whom
she had known since the time of schooling. The event took a
considerable time. Outside there was moon light which was shining
brightly which enabled PW2, PW3 and PW5 to identify the appellant who
was their village mate whom they had known for many years prior to
the event.

The
trial court came to the conclusion that under the circumstances, the
appellant was properly identified by PW1, PW2, PW3 and PW5. The
first appellate court concurred with that finding. The conditions
for a proper identification as held by the Court in WAZIRI
AMANI
V R.
(1980) TLR 250 were properly observed by both courts below. On our
part we have been satisfied that under the circumstances there was no
possibility of mistaken identity, and that the appellant was properly
identified by PW1, PW2, PW3 and PW5.

The
appellant complained also about some discrepancies in the evidence of
PW2, PW3 and PW5. Indeed there were some discrepancies in the
evidence of PW2, PW3 and PW5. The learned trial Magistrate
considered them at pages 49 and 50 of his judgment and held that they
weakened the prosecution case. But he went further and held that,
despite the discrepancies, the other available evidence was strong
enough to found a conviction. The learned judge on first appeal did
not say anything on the discrepancies. It is also not clear whether
she considered them at all.

We
have carefully considered the discrepancies and the holding of the
learned trial Magistrate. Notwithstanding the discrepancies, the
other available evidence supported the conviction. We are satisfied
that, had the learned judge on first appeal considered them, she
would have come to the same conclusion. The sentence of 30 years
imprisonment is the minimum under Section 5 of the Minimum Sentences
Act, 1972 as amended by Act No. 6 of 1994.

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