Mbaraka Hassani @Kashimundu vs Republic (Criminal Appeal No. 145 of 2025) [2014] TZCA 2171 (10 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: RUTAKANGWA, J.A, MMILLAJ.A AND JUMA J.A CRIMINAL APPEAL NO. 145 OF 2013 MBARAKA HASSANI @ KASHUMUNDU ................ APPELLANT VERSUS THE REPUBLIC...............................................RESPONDENT (Appeal against the decision of the High Court of Tanzania at Dares Salaam) (Massati, J.) dated the 27th day of April, 2005 in Criminal Appeal No. 143 of 2001 JUDGMENT OF THE COURT 24th February,& 10th March, 2014 RUTAKANGWA, 3.A.: The appellant was convicted as charged of the offence of Armed Robbery by the District Court of Ilala District (the trial Court). He was sentenced to thirty (30) years imprisonment. Aggrieved by the conviction and sentence, he unsuccessfully appealed to the High Court, hence this second appeal.-

His memorandum of appeal to this Court lists six grounds of complaint against the conduct of his trial by the trial court and the decisions of the two courts below. Briefly, they are as follows:- (a) the trial court did not address him fully in terms of section 192(2) of the CPA Cap 20; (b) the trial court and the High Court grossly erred in law in convicting him and/or in sustaining the conviction, as his plea was not taken before the commencement of his trial contrary to section 27 (2) of the Magistrates' Courts Act; (c) the prosecution evidence did not prove the essential ingredients of the offence of robbery, namely use of violence or threat of the use of violence (grounds of appeal (3), (4) and (6)), and (d) the prosecution evidence was contradictory regarding the number of people who went to the police station following his arrest.

To prosecute this appeal, the appellant appeared before us in person and was represented by Mr. John Mapinduzi, learned advocate. For th < respondent Republic, which resisted the appeal, Ms Angela Lushagara learned Senior State Attorney, appeared. Before we canvass the arguments presented by both sides in support of and/or in resisting the appeal, we have found it appropriate to, first, look at the evidence which led to the conviction of the appellant bearing in mind these two salutary principles of law. One, that the duty was on the prosecution to prove its case beyond reasonable doubts. Two, in determining the truthfulness or otherwise of an alleged fact, the courts weigh the evidence and never count it. The prosecution called five witnesses to prove the charge against the appellant. These were PW1 Stephen Nyari (the victim of the alleged robbery), PW2 No. C6368 CpI. Melikiel, PW3 Alfonce Mwelevu, PW4 Alii Bakari and PW5 No. D 4308 P.C. John.

In his evidence, PW1 Nyari told the trial court that on 27th May, 2000 at 12.30 p.m., he was along Congo Street, Kariakoo, buying goods for his shop. He was carrying with him Tshs. 1,400,000/= which was in a manila envelope which he had kept in the left hand side pocket of his pair of trousers. While so engaged, he was suddenly accosted by a group of people, one whom was wielding a knife, which they used to threaten him. PW1 Nyari did not yield and resolved to ward off the scare. As he confronted the armed bandit his colleagues joined him and in the course of the scuffle, his Tshs. 1,400,000/= was stolen. All of the bandits, except one, ran away with the money thereafter. The unfortunate bandit, the one armed with the knife, was arrested by PW1 Nyari on the spot with the assistance of "good Samaritans" and taken to the nearby Msimbazi Police Station where he (PW1) reported the robbery to PW2 CpI. Melikiel. This bandit was no other person, but the appellant, PW1 Nyari claimed. While PW1 Nyari was still at the police station, a police patrol vehicle, driven by PW5 P.C. John, arrived with two other suspects, namely Hamis Ngasa- aod Jako. bhabani. -i h e latter-twQ wefe-a frosted ky~among others,- PW3 Mwelevu and PW4 Bakari, as they tried to collect the robbed money

which one of them (Shabani) had dropped at PW4 Bakari's business premises. Thereafter, the appellant, Ngasa and Shabani were accordingly jointly charged. The recovered money, amounting to Tshs. 1,290,000/= was tendered in evidence as exh. P2, while the knife used in the robbery was tendered as exh. PI. In his evidence, the appellant totally denied committing the undisputed armed robbery, either singly or in conjunction with others. All he said was that on 27th May, 2000 at 12.30 p.m. he was at his business premises along Congo Street, when PW1 Nyari appeared complaining that he had been robbed of his money. He wanted to know if he had seen the culprit. When he repliedly negatively, PW1 Nyari began to shout calling him a thief. At that, people gathered, began to him, (i.e the appellant), beat him and subsequently sent him to Msimbazi police station in a police vehicle. At the said police station he denied robbing PW1 Nyari of his money. He was not believed and was sent to court on 29th May, 2000. In his judgment, . fhp l°arnorf trinl Prisi'l- r il r^visikT T th° entire evidence before him and was satisfied, and correctly in our view,

that PW1 Nyari was on 27th May, 2000 at around 12.30 p.m. robbed of his Tshs. 1,400,000/= by bandits who were armed with a knife. This finding is not being challenged in this appeal. The only issue he found himself bound to resolve was the identity of the robbers. Was the appellant among the robbers or not? In resolving this issue he relied heavily on the evidence of PW1 Nyari whom he found to be a witness of truth, (for he never mistook the appellant as he arrested him at the scene of the crime), and convicted the appellant accordingly. However, he was not wholly satisfied by the evidence of PW3 Mwelevu and PW4 Bakari going to implicate Bakari and Shabani as it slightly differed with that of PW5 P.C. John. He accordingly gave the two accused persons the benefit of doubt and acquitted them. In dismissing the appellant's appeal the learned first appellate Judge rightly, in our opinion, observed in passing that the acquittal of the appellant's co-accused "may have been questionable". All the same, after considering the entire evidence, he found the untainted evidence of PW1 Nyari to be cogent enough to sustain the. conviction of the appellant and if -ujm jtoe ftion was--needed,--it was supplied by the evidence uf PW3~

Mwelevu and PW4 Bakari. He accordingly found the appellant's story to be bordering on a "fanciful possibility." Arguing in support of the appeal, Mr. Mapinduzi, first of all adopted the memorandum or appeal wnicn naa ueen arawn ana loagea Dy the appellant himself. He, however, subsequently abandoned the second ground of appeal, and argued the first ground separately, while combining the 3rd, 4th , 5th , and 6th grounds of appeal and argued them together. Submitting on the first ground Mr. Mapinduzi argued vehemently that the appellant was not given a fair trial as immediately after, the accused persons' pleas had been taken, the hearing proceeded forthwith. To him this was a flagrant violation of the mandatory provisions of s. 192 of the Criminal Procedure Act Cap. 20. He did not go further to tell us what we should do in the circumstances if we were to uphold him on this point. This criticism of the trial court was pointedly rebutted by Ms. Lushaaara who chose ro rely nn me pmrpp<1ing. s-of the trial- rnnit nn May, 2000, found on pages 4 to 6 of the record of appeal. It was her

strong contention that this particular complaint was totally misconceived as the trial court held a preliminary hearing, at which the three accused persons denied every material allegation against them as appearing in a "memorandum of facts" prepared by the public prosecutor. She accordingly urged us to dismiss this complaint. After perusing pages 2 through to 6 of the record of appeal, we are of the decided opinion, that this complaint is, indeed, totally misconceived and should not detain us at all. We are in full agreement with Ms Lushagara that the trial court did conduct a preliminary hearing on 29th May, 2005. The written "memorandum of facts" filed with the trial court listed eleven (11) material facts going to show when, where, how, and by whom and on whom the alleged armed robbery was committed. The appellant and his colleagues denied all of the alleged facts except their respective names which was fact number (1) "in the memorandum. The only omission by the trial court was that it failed to draw a memorandum of the sole undisputed fact. In our considered opinion, this omission did not occasion- any railure of justice ~ on~Llie pail Of the appellant," as Mr.

Mapinduzi eventually conceded. We accordingly dismiss the first ground of appeal. The thrust of Mr. Mapinduzi's submission in relation to the remaining grounds of appeal, was that the two courts below erred in fact and law in finding the appellant guilty as charged. While conceding that the offence of armed robbery was satisfactorily proved, he adamantly maintained that since at the scene of the crime there was a crowd of about 200 people, it could not be held with any deqree of certitude that the appellant was one of the robbers. To him, the complainant's accusations against the appellant were based on mere suspicious as he (PW1) was confused and his evidence needed to be corroborated. He accordingly urged us to accept as true the defence version, and allow the appeal. Urging us to dismiss the appeal, Ms Lushagara contended that the evidence of PW1 Nyari by itself was cogent enough to be a basis of the appellant's impprrahlp convirtinn Shp qfr-n^no.d fhnt I I ih i I h I hi mining here is the issue of credibility. Once PW1 Nyari is found to be a credible

witness, as the two courts below did, then the conviction of the appellant could not be overturned. She went further and argued that the evidence of PW1 Nyari needed no corroboration, once it is accepted to be nothing but the truth. We agree with Ms Lushagara that this appeal stands or fails on the basis of credibility of the witnesses. The two courts below believed the evidence of PW1 Nyari, as supported in material particulars, by PW3 Mwelevu and PW4 Bakari, that on 27th May, 2000 at 12.30 p.m. along Congo Street Kariakoo, he (PW1) was robbed by armed bandits of his Tshs. 1,400,000/=. The appellant does not challenge this fact. It was also the evidence of PW1 Nyari, that among the bandits who robbed him of his money was the appellant who was actually wielding a knife with which he threatened him before the money was stolen. Both the trial court and the first appellate court believed PW1 Nyari's evidence that he grappled with the appellant, and with assistance of a few "good Samaritans", disarmed and arrested him and sent him to Msimbazi Police Station.

The evidence of PW1 Nyari, we have learnt was supported by that of PW3 Mwelevu and PW4 Bakari. PW3 Mwelevu said:- "On the material day you invaded the complainant and stole his money on the material day; and you had a knife on (sic) your hands and I saw you when stealing his money...." Earlier on, while under examination in chief, the same witness had said:- "Even myself I was threatened by the accused person and their friends who are not present in court..." As if that was not damning enough, PW4 Bakari said:- "I saw the complainant fighting with the 1st accused that (sic) I saw on the material day had a knife in his hands threatening PW1 (the complainant)". Responding to. the appellant's question, PW4 Bakari asserted the PW1 Nyari "was helped by other people to arrest" him.

It is trite law that every witness, including an accused person, is entitled to credence and must be believed unless there are good and cogent reasons for not believing him/her: See, for instance, Goodluck Kyando v R. [2006] T.L.R. 363, Patrick Sanga v. R. Criminal Appeal No. 213 of 2008 (unreported), etc. The trial court found these three key prosecution witnesses to be witnesses of truth and believed their evidence, which unerringly not only placed the appellant at the scene of the crime but also unmistakably connected him with the armed robbery as a principal offender. This finding was upheld by the first appellate judge after objectively re-evaluating the entire evidence. On a second appeal, like this one, it is not open to us to disturb this concurrent finding of fact, unless it is established that it was based on a misapprehension of the substance, nature and quality of the evidence (Ludovick Sebastian v R., Criminal Appeal No. 318 of 2007 (unreported), which was not the case here. The appellant is only wishing that these three witnesses were found to be liars. We have found no material on recor- d- to move-us towards that-dtrection. We accept a\i&~

uphold this concurrent of finding fact which leads to proof of the appellant's guilt beyond any reasonable doubt. In the light of the above discussion, we hold without any demur that these combined grounds of complaint lack merit and we reject them. All said, this appeal is accordingly dismissed in its entirety. DATED at DAR ES SALAAM this 26th day of February, 2014. E.M.K RUTAKAIMGWA JUSTICE OF APPEAL B.M.K. MMILLA JUSTICE OF APPEAL I.H.JUMA JUSTICE OF APPEAL [ certify that this is a true copy of the original. F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL