Kassim s/o Masud @ Adi Ntuzuhungwa vs Republic (HC Criminal Appeal No. 43 of 1999) [2000] TZHC 455 (19 July 2000)

IN THE HIGH COURT OF TANZANJ;A AT TABORA I +/..- f,,~~ APPELLATE JURISDICTlON (HC) CRIMINAL APPe N043ef44cf45 OF 1999 I . . ,. ,. ORIGINAL CRIMIN.AL OAE NO 82 OP 1998 OF ISTRICT COURT OF KUZULU DISTRICT AT KASULU .... ·,,. Before: BIYEREZA DISTRICT MAGISTRATE KASSIM s/o un @'Al ZUHUNGWA V!l,RSUS .. APPELLANT THE REPUBLIC t ~ · RE$Pf NDENT t MASANCHE, J. ?V The three appellants K&simu s/o Mas_ui, Hal,iq. Kubila and Simon ' ._If Msanze were convicted of tw~ offences Ji e i1trict_ Court of Kasulu, • t •• at Kasulu. They were SQ. onvieted by iYe!'fa,J>fstnict Magistrate. - ·/•{ • , . 'r· .. (., · .. 1· •• ~ .:, • ~: -: ; The three appellants we :racing twn · otf~~~-§{ bμrglM"ly c/s 294 (1) . : F . ,: ~~·t_- :·.·r' : ··:{ ·:.:. '·::·.- • .. of the penal Code and gt-ievous harm c/s · 22j. f .. ti.,. ·peMl Code ( the 1- ·-: ' • • • ~ •• • -.· ' ·.~ citing of the section is . ommitted i~ f'1e ch8!ge ae(for su;re) ~ ;. :,· .,, All the three appelli!:nts were convteql. a5 ! .; fid., d the .first and third accused were sentenced to 3 yeEi. j,mpr$..()J?.nlent on the. first . 1·1' . : : .. ' . Count (that of burglarly) and two years ,.impi::isnmcn.t on the second : ···: count, (that· of causing grievous bodily hIll) ~ The second accused, Hal id Kubila, who was 16 years of age at that time 1 .was setenced to two years imprisonment on the first Count,, and, to three years imprisor.ment • ' I ~ on the second Count• I have not seen an order in the file as to how . ,-:-:· :-:. ' .these sentences are to be served. It is not clar whether they are to be served concurrently-or consecutivelyr these chargQS., . · .,. I,. The ~ppellants ·had denied .' : ... 0

2 !his offen-e totk pla~, at ntgh~, henf.e, 0f course, its being ~ - called a bure;larly. The injuries staiped by the complainant were •• grave. ,_r• • r· · t b ..:. 1 ·t a his index inger nad •O e ampu .. ~ e· ♦,;· He had also cut wounds on the skull (see Exh Pl), This exhibit shows that he had . ,. . been hospitalised as from 18/5/98 to 5/6/,98,, C •~~•, Mr Mwampoma the learned etate attoney who represented the . ~ . . Republic ifotmetl me that he W?S n,ot su.pprting the convictions, as, . f·: according to him, the identiflifaion of the assaillants by those who gave evidnce never became wat~!' rtight, · I have read the record (: ' several/times.:,,., This''J..6' wha't;t I have to say on the case: ,:· The facts show that ,'Wl Ndafa:".~~~;,.·s/o Kuyeko and PW2 • • • · ; ,__ ·•· ·•11 JY - Theresia I w/o Ndagweetse wre man and wi}e. On 17/5/98, 'lt about ¥ ' 9:00 pm, they were in then house at a village called Mahungo. It appears their house was not welj. secured. It was made of, what was described as nrouh timbe;:' door" without hinges. The ···it I . ' , wife was at a fire plce - and ther~ w1;1.s ll..wing fire there - and · the husband was resting on their matimonial bed. None of them was ' asleep, in other wordso The learn tial magistrate in his 0 judgment writes that the wife was prepering evening meals, That I do . i not see in the record. But it would appear to be true that the Couple were c9mfortably resting in their homec While, the couple wore ,1, resting, a knock was heard on th door~ the rough-door. Someone was knocking and it is said it was a persistent Knocking. The complainant PWl, asked who it was who was knocking and the person replied 'tho.the , was risimon" •·· PWl realised that it was indeed a voice of Simon, his villagemate, ·the third accused, now third appellant. PWl descended from his bed 2nd went to open the dooro Alas,immediately he ~pened I Lft • '

{ITC) CR.APP.43cf44cf45[99 3 the door three person:. f orcebly entered 'i::he house. Let PWl himself ,--- . take up the story: He says; "Just before I could open the _door which is made of rough timbers without hinge~, I was pushed inside and ;· I saw three persons entering into the house and I identified the persons to be Smon Ally (1st accused) and Kasimu Kibila (the 2nd accused)o This identification ·•. . . ~ I made trough the burntng fire and lamp. No sooner the persons had broken into my house than the 1st accused perso flaabod a torch and Simon cut me with a panga and the 1st accused person got ready with the panga to cut on the head but I childed it with my left hand and the panga cut the fingers and ianded at my f@rehead. I fell down when I received a hit of a club on my left leg from the 2nd accused person. My wife raised an alarm and on hearing this my assaillants took to their heels." That story is, to quite a large extend, corroborated by the evidence of the wife, PW2 which says (to quote PW2 verbatim) tvJust as soon as the door was pushed open I saw three persons entering by the help of the burning fire and the koroboi which by then were still burning• The wife goes on to stAte: HMe and PWl told the persons who came at the scene that we had identified the accused persons at scene" Still the story of identification is taken up by PW3, Shaban s/• Tetembwa who says, I quote:- " I interrogated Nl as to .,,ho were responsible for the cut wounds he was sustaini~r and""PWl told me that he had

, (lic)CR.APP •. 43cf44cf45/99 4 identified his assaillants to be Adi Ntiruhungwe Kasimu@ ,. Khalid and Simon, the 1st, 2nd, and 3rd accused respectively' Still take the policeman, ·the investigator,ASP Mgetta P4: He says, -:-:,, and I also quote him: I "On interrogating FWl he told me that ha had been assaulted by 3 p~~~ namely Kassi.mu, Khalid and Simon who lter 'on were identified to be the lstnd and 3rd accused person& respectively." ' The celebrated case on identificAtion ... __4aziri Amani ~ f'1..98oj --. T.L.R 250 says, among other things 1 -th.at identification from relatives, neighbours, close friends, workmates,. vill:::ige mates are matters whieh our . pass the test in ther. identification cases. And in ./. case, where there was light from two sourcs, the glowing fire and the tin lamp, a Court could, justifiably,hold that there was good lighting to warrant proper identification It is also the law that where a victim of ,rime,- •hild PWl here, mentions names of assaillants a.t the earliest II opportunaty, such mentioning becomes a credit in the whol_e weighing of credibility of witnesses (see Case Anangisye_Mf:3.sendc Ngwang'wa vR Mr Mwampoma, the learned senior state att•rney, but much emphasis on the evidence of voice identiicaicn~. But that was not the only way tat Mand PW2 PW3 and,indeed 1 PW4,say the appellants were identified. There was this fact that the appellants and the ,eomplainant hailed from the same village. There was this fact of a familiar voice. There was this fact of, indeed, relationship between say Simon himself and PWl. It is said Simn called PWl his uncle; Ad I would even say that there was this . '

• I : .: . ;,'-;, ·. •.;\ ..... : .. . ..i~ ~~:-•:··. :~ • : "',. ~ (HC)CR.APP.43cf44cf45/99 • 5 . ~ ... ,,, . ;" .,-,.: ... .,;,- ·:· ... bckQtl.l'l(i- 1 element of these cases betweeJ let accused and- the . complainant which, to my mid, would. adequately lay down.the moti.a for the attaOJc• ., - There we.s the issue of alibi raised by the appellants wh;ic;h · ~~R:: was rejected, and I think rightly so~ . The alibi, as pointed out by the trial magistrate,never- ..conformed- wfth S_l94 of the Criminal Procedure Act 1985. · I would therefor-e.., with. gt'eatef.t rect. .differ with the · learned senior state attrney who thnks there was no ade.quate identification of the assailla~te, ·r. ,m satisfied there was adequate identification in thie casen Their convictions were well deserving. About sentence, I ~-0ta t:~at the 16-·years old. accused .. . (Khaltd) had turned 18 at the time el conviction. The sentence proper. · procedure ·against him was theref ~re,,:· t, f correct · the record by orring all the sem::en-ct& -met.Gd --"Ut to ;i;:un concurrent t'>· each ?:- : . ~: other. ', ·•I\ \ ., I t. 19th Juiy 2000 At Tabora Appellants: Absent. Mr Kbbuguzi for Republic. . ' . i •· , -i ,I_