Daudi Masige vs The United Republic (HC Criminal Appeal No. 117 of 1998) [1999] TZHC 99 (10 June 1999)

__, l-tJ~~ iN THE HIGH COURT OF T.4NZANIA J DAR ES SALAAM DISTRICT REGISTRY . , . - ... , . " ~ .-, AT DAR ES SALAAM APPELLATE JURISDICTION HCCR]JHNAL APPEAL NO .117 OF 1998 (Original Criminal Case No.371 of 1997 of District Court of MORQGORO District at MbROGORO Before M .. YUSUPH Esqj District Magistrate) D1~UDI :tvrJiSIGE ~ • •• ~ i. : ~ •...... J APPLICANT (Original Accused) Versus THE UNITED REPUBLIC · .. JUDGMENT BUBESHI, J ~ RE.SPOI\TDENT (Original Prosecutor) The appellant was convicted of armed robbery c/s 285 and 286 of the Perial Code and sentenced to 30 years gaol term. He is aggrieved and has .filed thus appeal giving 7 grounds of complaint. that his cautioned statement was made und.(3r duress

• that the identification parade was not properly conducted as the complainant was told of how he loc':ed like before the parade. that conviction was based on unsufficient evidence. that some of the important witnesses to testify whether it same gun that was used to threaten the complainant F1/ 1 were never called.
• I that none of the items stolen from the complainant were found at the house of the appellant that the trial magistrate ought to have considered the· true factor ie, the offence h_~pened on 30/4/97 while the appellant was arrested on 10/8/97. The Republic, which was represented by Miss Otaru, •.• /2 • ...

2 ' learned·State Attorney, supported both conviction and sentence. To elaborate his appeal, the appellant has filed' a lenghthy submis.sion oh the grounds elaborated above~ Like the learned State Attorney. I am of the view that the cautioned statement was not made under duress. His complaint is not supportd by the record of proceedings! ! Had he made such a complaint, the trial magistrate was duty bound to investigate it and, if need be conduct tial within trial. I dismiss this complaint as lacking in merit.;. The appellant has complained that the identification parade wa·s not property conducted.. That he was convicted on the basis ,of being identified at the parade and being found in possession of the UZI GUN similar to the one that was used on the day of the robbery. I have had time to revisit the evidence tendered by PW 1. He described clearly how the appellant threateded him on the day of incident~ how he looked like and what type of gun he heldi The complainant had ample time to identify the appellant. I rule out the issue of mistaken identity despite the lapse of 3½ months between day of incident and when he was arrested. The appellant, in his attempt to buttress his case has cited several authorities on the issue: R 'v RUGI 3HA K.:A.HINDE and ANOTHER (1991) TLR 175 and WARYOBA HACHMJGE v R (1991) T .L .R 38. In the first case the identification of the accused took place a year later and in the second case, the parade was mounted four years after the date of the incident. After reading the two cited authorities I find myself unable to agree with the appellant as the faeis ln the two cases above are clearly distinguishable from the present case. Having revisited the evidence on record, I am satisfied that the complainant PW 1 sufficiently identified the appellant. And further he was able to identity further he was able to identify the gun which resembled the Jne that was used to threaten him on the day of the :-obbery O The conviction by the t:c-. 1 .al magic crate ·v1e.s based solely on identiiiation of the .::i l,c;1L ap).-:.llant. c1.,e, I carnc ..• /J

. . ' , __ ..-- .,, -=-.::1 ~~ :i ·j•! Ji (, In the premisSJ I fid th~t this appeal looks & ,t: merit and it is accordingly dismissed~ :1-1 I I \o·l "I A~ G, BUBESHI JJJ})g§ io/6/99 I \ /,.: \ . ..

.. ··- _CR:tM'.!1V,L !J?PEAL NO. 85/98 ( o;igin2l Crimin::.l ·Cc.se No~ 55/97 of the District Court of Ulrai.ga District nt,Mhenge Befo:t A11Lrn. Mo.lly:1 Esq; Resident/District r-bgistrate) JUMA HA.S:S.1U't @ Hl.SS IN HABIBU 1'.\PPELLllliT Versus Rll'UBLIC . . ' o e • o o o • b 4 .~ o • o o • 6 t ti o o o ~ o o i o ji o c t. o 6 i o s .. The nrpeliant JUMli. Hf.SSAN @ H,\SSl1N HABIBU was chm'ged and cbnvicted of burglary and stealing contravy to Section 294 ( 1) and -:-65 of the Penal Code in the District Court of Ulanga at Mr-henge. He was on 13th March, 1998 sentenced -\o ,six y__ears imprisonment for burglary and twelve month!": for " -( - stealing, the value of the property e..sp,essed at Shs. 5200/=. The sentences we to run concurrently. /;ggrieved by both the conviction and sentence he lodged this appeQl the subject of this judgment. The background of the case fr, thc,t on 26/9/97 at .1 .. 00hrs at MinepD. village Ulcu1ga District accused broke and entered into the dwell:ing house of ~ . HALID LY!J'i!GF. (F:J 1) with intent steal. It is the case for the rrosecution thc..t the ti.ccused, while is PW1 1 s hou.se, stole thre2 tinG · of paddy valued at Shs. 5200/= the proP.:erty of PW1 .. Accused was surrised by FW1 who then summoned for help; was arr€/s-l3ed and taken to th~ office of the w,-:-_rd secretary where he spent thE. remaining po.rt of the night. Accused was later taken· to Mahenge Polioa Station nnd subsequently brought to Court for trial. Three witnesses testfied for the prosecution, ie HALID LYi'iNGE ( PW1) HASHIM SI\NDA (PW2) :falter o± FW1 ,:md JonQS Mbagi (PW-;) the Minepa wnrd secretary• Fr-om tbe record of the tri-'./i court these vJere all ey& witnesses to the crim0 on the fateful night and hd never met the accused before. On i;he other hand the appellant I s sole defence at the trie.l · ir:: to the effect that he wri.s c11ught .. by four people unknown to him at the Kivukoni Ferry on 26/9/97 at 8.oo hrs on his way to IFfJUJUi. a.11d was told that he was being sought by the Minepa . War $ecretixy 9lld upon arrival end after interrogation he was token to . Mahenge Poiice Station where he was charge and brought of Court. At thfo ... . appe,:).l the api,ellant rey.,e;0;ts the defence evidence he gave during the trial ,md further .states th~t he was not given opportunity to c-all ony witness at the trinL He has indicatad that he would no be present at the hee.rbg of the appeal-. •

2 Miss Mkwizu le:U'!led State. Atto:rney; appe8red for the Republic at this appec.l .. She supported both the conviction and.sentence by the trial Didrici: M!?,gistt:te in that the prosecution case wns proved beyond all reasonable doubt in the evidence of PW1; PW2 and PM?e She has further challenged the appellc>.Jlt' s assertion of denial of opportunity to call witnesses at the trial not to be true. I have carefully examinEd the record of the trial court and I sntisfied thet the appellant was properly convicted on the o¥er whelming evidence by the prosecution. And as correctly ,submitted by MisP Mkwiz~ te learned State Attorney the evidence of IW1, PW2 o.nd FW3 leaves no 'tloubt on the guil't• of the accused now appellnnt. In the event I dismiss the appeal for want of merit The conviction and sentence of the trial court are hereby confirmed. COURT: Right of tppeal explained. S oTIIH1ft JUOOE 26/5/2.000 S. IHEM.1. JUIXH: 29/5/2000