IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM:
MUNUO, J.A., NSEKELA, J.A., AND MSOFFE, J.A.)
CRIMINAL APPEAL NO. 39 OF 2002
HIJA UWESU……………………………………………………. APPELLANT
VERSUS
THE REPUBLIC………………………………………………. RESPONDENT
(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)
(Luanda, J.)
dated the 20th day of August, 2001
in
H/Court Criminal appeal No. 28 of 1999
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JUDGMENT OF THE COURT
MUNUO, J.A.:
In criminal case No. 1277 of 1999 in the District Court of Ilala at Kivukoni within Dar-es-Salaam Region, the present appellant was convicted of robbery with violence c/s 285 and 286 of the Penal Code. He was sentenced to a term of fifteen years imprisonment. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania in Criminal Appeal No. 28 of 1999. Luanda, J. set aside the sentence of 15 years imprisonment and substituted therewith, the mandatory minimum sentence of 30 years imprisonment for robbery with violence because some four bandits committed the charged crime and in that regard the appellant was liable to thirty years imprisonment under the provisions of Section 5 (b) (ii) of the Minimum Sentences Act, 1972 as amended by Act No. 6/94. Aggrieved by the decision of the High Court, the appellant preferred this second appeal.
Testifying as PW1, the complainant, Gerald Dominick, deposed that the appellant and three other suspects confronted him as he disembarked from his vehicle and jointly seized Shs. 257,260/= from his pocket. Accompanied by PW2 Peter Pata, PW1 ran into Small Garden Bar where the appellant and his co-suspects followed him through the rear door. That the parties quarrelled at the bar was confirmed by PW3 Barawa Andrea. He stated that he was awakened from sleep by shouting and quarrelling in the bar. He said that he saw PW1 and the suspects quarrelling but he could not tell if money had been stolen from PW1. PW2 also stated that the parties quarrelled and fought but he could not tell how much money was stolen from PW1fs pocket. The complainant further stated that his neck, shoulder and waist were injured in the attack so he reported the matter at Magomeni Police Station where he got a PF3, Exhibit P1, for treatment. PW1 said he only identified PW1 by name because he knew him. The appellant and another suspect who was acquitted by the High Court were then traced and arrested. They first appeared before the trial court on the 30/12/97, over three weeks after the incident on the 5/12/97. They were initially charged with the offence of stealing from the person of another c/s 269 (a) of the Penal Code, Cap 16 as reflected at Page 1 of the record of appeal. The said charge, as will be seen later on, was substituted with the present charge of robbery with violence c/s 285 and 286 of the Penal Code.
Upon convicting the appellant, the trial magistrate observed;
This court had the advantage to consider the demeanour of the witnesses and the way they answered the questions put to them in cross-examination and fully satisfied (the court) that the accused were the persons who attacked the complainant and stole his money. The other two were not arrested as (they) disappeared from the area. At the police station the accused admitted beating the complainant but denied the stealing but later denied even arriving at the said bar. I find the accused guilty and convict both accused of robbery with violence c/s 285 and 286 of the Penal Code.
Upholding the conviction and varying the sentence imposed on the appellant, Luanda, J. held that ?
---The circumstances of this case which the trial court relied on is to the following effect. First, the incident occurred around evening hours and there was electricity light inside and outside the bar. Second, the incident did not take place at a flash. It took sometime. Third, the complainant was attacked twice namely, while disembarking from a motor vehicle and inside the bar. Fourth, the assailants were at zero distance from the complainant. These circumstances are in my view favourable conditions of identification. Like the trial court, I am satisfied that the appellant was among the four assailants ?
On the sentence, the learned Judge observed that the sentence ought to have been 30 years imprisonment as stipulated under the provisions of Section 5 (b) (ii) of the Minimum Sentences Act, 1972 as Amended by Act No. 6 of 1994 which requires that the sentence by gang robbery like in this case where four bandits allegedly robbed the victim of cash. Shs. 257,260/=, should be 30 years imprisonment. Section 5 (b) (ii) states:
5 (b) (ii) If the offender is armed with any dangerous offensive weapon or instrument or is company with one or more persons, or if at or immediately before or immediately after the time of robbery, he wounds, beats, or strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment to a term of not less than thirty years.
In view of the provisions of Section 5 (b) (ii) of the Minimum Sentences, Act, therefore, the High Court set aside the sentence of 15 years imprisonment and substituted therewith a sentence of thirty years imprisonment.
Dissatisfied with the conviction, sentence and compensation order the appellant brought the present second appeal. The appellant was unrepresented. The respondent Republic was represented by one Mrs. Kabisa, learned State Attorney. Four grounds of appeal were lodged by the appellant. He alleged in the first ground of appeal that the trial court erroneously grounded the conviction on the police statement he made after arrest. The learned State Attorney correctly observed that no police statement was produced at the trial so the 1st ground of appeal is lacking in merit. We accordingly dismiss the first ground of appeal.
In ground 2 and 3 of the appeal, the appellant complained that charge of robbery with violence was not read over to him so he never pleaded thereto which omission renders the trial a nullity. He further complained that his guilt was not established at the required standard of proof for criminal cases so he should have been acquitted. The learned State Attorney conceded to grounds 2 and 3 of the appeal.
With regard to the substitution of the charge of robbery with violence, we could not, during the hearing, trace the proceedings of the 24/12/97, in the original record. When we carefully again scrutinized the original record before writing this judgement, we indeed spotted the said proceedings. The Mention proceedings on the 24/12/97 read verbatim:
Date:
24/12/97
Coram:
M.O. Momba, DM
c/c:
Ayoob
Pros: I pray to substitute the charge.
Fresh charge read to the accused who are asked to plead:
1st Accused:
It is not true
2nd Accused:
It is not true
Court:
Entered as P.N.G. (Plea of Not guilty)
Sgd: ---
Pros:
I pray for mention date.
Order:
Mention 26/1/98
Bail terms extended.
Sgd: ---
The proceedings of the trial court on the 24/12/97 clearly show that the charge of robbery with violence c/s 285 and 286 was substituted and the appellant pleaded not guilty to said charge. We thus find no merit in ground 2 of the appeal.
The question is whether the evidence adduced at the trial supports the charge of robbery with violence.
The learned State Attorney submitted that on the facts on record and the evidence adduced at the trial, the evidence is insufficient to establish the offence of robbery with violence c/s 285 and 286 of the Penal Code. She was of the view that the evidence established the lesser offence of assault causing actual bodily harm c/s 241 of the Penal Code.
We find nothing on the record to fault the findings of the trial court on the credibility of the prosecution witnesses, more so because we did not have the advantage of seeing and assessing the credibility of the witnesses. We are clear in our minds, however, that from the testimony of PW3 Barawa Andrea, the supervisor at Small Garden Bar, there was a fracas involving PW1, PW2, the appellant and his co-suspects. PW1 reported to the police that Shs. 257,260/= was seized from his pocket.
Under the circumstances, we are satisfied that the appellant and his co-suspects who are at large attacked the complainant and seized from him Sh. 257,260/=. In that regard, the appellant was rightly convicted of robbery with violence. The learned Judge properly imposed the sentence of 30 years imprisonment on the appellant.
We accordingly uphold the conviction, sentence and compensation order.
The appeal is accordingly dismissed.
DATED at DAR ES SALAAM this 29th day of August, 2005.
E.N. MUNUO
JUSTICE OF APPEAL
H.R. NSEKELA
JUSTICE OF APPEAL
J.H. MSOFFE
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CRIMINAL APPEAL NO. 39 OF 2002
HIJA UWESU……………………………………………………. APPELLANT
VERSUS
THE REPUBLIC………………………………………………. RESPONDENT
(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)
(Luanda, J.)
dated the 20th day of August, 2001
in
H/Court Criminal Appeal No. 28 of 1999
Between
The Republic……………………………………………………. Prosecutor
Versus
Hija Uwesu…………………………………………………………. Accused
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In Court this 29th day of August, 2005
Before: The Honourable Madame Justice E.N. Munuo, Justice of Apepal
The Honourable Mr. Justice H.R. Nsekela, Justice of Appeal
And The Honourable Mr. Justice J.H. Msoffe, Justice of Appeal
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THIS APPEAL coming for hearing on 19th day of August, 2005 in the presence of the appellant AND UPON HEARING the Appellant in person and Mrs. Kabisa, State Attorney for the Respondent/Republic when it was ordered that the appeal do stand for judgment;
AND UPON the same coming for judgment this day:-
IT IS ORDERED that the appeal be and is hereby dismissed – conviction, sentence and compensation order are uphold.
Dated this 29th day of August, 2005.
Extracted on the 29th day of August, 2005.
( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR
