Jacob Mlongo and 7 Others vs Republic (Criminal Appeal No 240 of 1995) [1999] TZHC 96 (15 January 1999)

KALEGRY.A. ,T. IN THR HTGH COURT OF TANZANIA AT _DAR __ F.S SALAAM r.RTMTNAT. .. APPF.A_L. __ N0. ___ ?._4_0 OF 199!1 (Origi.nating from Tla]a Distx.ict Court. at K:i.sutu Criminal. Case No. 15 of 1QQ5) JACOR MLONGO & 7 OTHF.RS .................... APPELLANTS VERSUS THE REPUBLIC ............................... RESPONDENT J U D G E M E N T The Appellants: Jacob Mlonga (<l Benkichwa, Saidi Mlonga (<l Mapes a.- I sma i 1 Sn l um (<l Ki nnong;:i .- <;;:is t.ory Suen .- Si=l .i cl .i Sal. i.m (<l Kipua, Kipara Mwinyimkuu,. Peter Mathew and HaJfani Omari (<l Daudi ( stylen 1.st-=\ 8th Appe 11 r1nts nspect.i ve 1 y) hav.i. ng heen r.onv i ct.ed by the Khrntu Resident. M;:igistrrit.8 's r.crnr.t (Ki.m;:iro,. P:RM) for armed robbery c\s 285 and ?.A6 they are rissriiling that decision. Each of the Appellants was sentenced to thirty years imprisonment with 1~ strokes of corporal punishment save the 6th Appellant, who, owing to his ag~, estimated to be between J.7 and 20 years was sentenced to 4 years jmprisonment. Undisputed facts in thj_s matter are that on 16\2\95, at about 2.00 a.m., PW:l.'s house was stormed by a group of about 15 thieves who, apart from injuring the occupants j.ncluding PW1, stole various articles whose value is estimated at shs. 2,022,000/=. The robbed premises h~d two sections - a main house and a rear. hom,e. At. the time of robbery PW1 liven :in the mAi.n house while PW2, his son, Tut.11 Hassan, PW4, MRngapi HassAn, another son, And PW5, M;:ifuko r.hi ng 1 ang' A, r.1 t.en;:int, _occupied the rear. The premises were li.ght.ed. While withdrawing the robbers threw away-a video deck r.1nrl ;:i f;:in. Tn the process of stealing, the robbers l \

injured PW1 on thA head.: PW2 on h:i.s left ,:incl right hand and PW5 on his left hand. PWl, 2, 4 and 5 named the Appellants as having been among the group of robbers while PW6, a police officer who was on patrol, maintained to have identified 1st and 2nd Appellant by help of a motor vehicle head lamp lights. He stated further that the 1st accused had a dAck while the 2nd accused had a fan both of which were dropped when they (1st and 2nd accused) were flooded with motor vehicJ.e lights. On appea.1 to this court. the Appellants argued that as the identi f icat. ion was . mAde at n j ght t.hB t. r ia 1 c::ourt mi. sd i.rect.ed itself in crmvic:ti ng on uncorrohor.at.ed P.vi.dence.: that the evidence relied upon was of just family members hence not sufficient to found a conviction.: that. proof of injury allegedly occassioned on PWl, 2, 3 should have been made hy the actual testimony of thB doctor c:oncerned and not hy merely PFJ; that under Cap. 13, The Children and Ybung Persons Ordinance, convi.cts under 17 years should not. be r:ondemneo t.o c:ust.odi;:il sentences and finally that being first offenders sentencing them to corporal. punishment as well was illegal. While Appellants arg11ed their appeals jn person 1 Ms Sehe, State Attorney,. represent.eat.he Rep11hlic\Respondent. 'I'he latter supported convjcti.ons in entirety observing that there was proper identification of the Appellants. T sho11Jn out.rightly brush asine t.he complr1ints r.egar.djng the aJ.leged family-memhers' evidence ann thP. fail11re to cal.l t.he doctor for lack of merit. There i.s no law which pr.escri.bes that family memherr-;' evidence cannot. he rel.ied upon t.o found a conviction in a charge for. rohbery committed at night. What. is important is the er.edibility of the witnesses involved and also the circumstances sorround i.ng a part i.c11 lar case. ,J as son Rwembanaira case. [1975, LR'I' No. 26] cited by the Appellants did 2

not lAy down Any sur:h pr .i nci p.1 e except saying that in that case, regard be i.ng ha.d to its spP.c ia 1 circumstances independent witnesses were req11ired. Also the question of calling in a doctor to depose phys i.cA 1. ly r.ou l cl not ;:ix .i se for. there w;,s no dispute reg;:ir<i i ng the i n j 11r i es ncc.::Hd onP.d new d i.d the '1.ppe l la nt.$ raise thP. m;if-.1·.er ;:it_ ;:ill ouring thP. trir1l. T now 1·.,1rn to t.h1-'! q11est.ion of identification. Whi.le ;:ippreci;:iting the clear principle of the 1.aw whjch evolved through r.;:ise lr.1w.. inc 1 nci i ng those pronounced in Wa.::d. :d Arnr:1 n i v R ( 1980) '1' r. R 2 5 0 and R v T in g ;:i Ke 1 e l A ( 1 9 7 4 ) T, RT .. and wh j ch a.re to the effect thAt before the evi.dence of vi.sual identification when conditions of focus ;ire unfavotJrAble, i.e. at night, is relied upon to f oun<'l ;;i conv.i.ct.i.on t. he court shoo 1d wArn itself of its dangers and must be satisfied that it is wr:1ter-tight, for, a witness may h~ honest,. genuine ;ind yet mistaken (Abdallah bin Wenda ;:ind another v R ~O E.A.C.A., 168) in the j_nstant case I am sat..i.sf i ed that. the tri.al co1_1rt. propel'.'ly directed it.self and analysed in <lAt;:ii]s the evi.dence at hand before convicting. I mm.:;t. emphai:; i se t.ha t. the legal pr .i nc.i.pl es governing the issue do riot provide that. of ner.essity there most be corrohorat.ion but r;:it.her they ;:ilert. the court. that in cer.t.ain situations it may be necessary whil.e in others it rn;:iy not. Al] the same however the co11r.t. mu.st be sat.i sfied that the evidence is water-tight as regards identi.fir:at.ion of the r1r.cused. In this case,. the trial court. went into details to ascertain how each ;;icr.used (appellant.) was ioentified. Fir.st, notwithstanding that it was at night the evidence is clear that the sorr.ound ings hr:1d 1. i.ghts hoth i. ns j de and outside. Secondly .. the evidence shows that the identifying witnesses (PW1, 2, 4 and 5) had ample time to identify the r.Aiders ;:is they stayed in their vicinit.y for q11itA ROrnP.t.imP.. Tn f.::ir.t,. PW4,. hr:ld all the undisturbed ch;:ince a.t. his dispnsAl.. He had m;,nag8d to nm out of '.i • '

the house before raiders came to hi.s room. He took cover in the sor-roun<l ing ban;rna trees r.3nd fol lowed c l.osel y what was taking place. 'l'h i r.d l y, the Ar.c11sedi; were not new to these witnesses (PW1, 2, 4 an<l S). 'l'he Appellants lived in the neighbourhood. They knew each other we1.1. As regards the tst. and ?.nd accused there is even corroborr.3tion in the evidence of PW6, who was on patrol. He deosed to have been in Vi.cinit.y when people were chasing robbers. He deposed, and the trial. court believed him, and I find no reason to r.onclu<le otherwise, that while running t. he 1st. ana ?.nd ar.cuseds got caught. 11p in the fl oo<l l i.ghts of the vehi.cle he was riding; they dropped the Video neck and fan they wen r.;:irryi ng anrl run away. PWn r.nl 1.ect.ed the ar.t..i.cles which were dul.y identified by the witnesses as heing some of the ar.tj_c]es that. hnd been stn1An from their hc:rnse. From the tot.Ality of the above evirlenr.e Tam Sr.3tisfied that inent.ificr:1t.inn w;:is writ.er-tight. ;:inn t.hat. t.he trial r.ourt. was justi.fi.ed i.n fonnd.ing r1 r.onvir.tion t.hereon. Finril.ly: we come tot.he quest.ion of sentence. While the compJ.;;ijnt regarding inflir.tion of corporal p1inishment hos no mer. .i. t as the t.:r i.a .. 1 court <lid not. ;ir.t. in excess of its powers, equally the r,omplaint r.eg;uding sending to prison ri convict aged 17 yerirs .i. s wi t.hout .1 egs on wh i r.h to st.and. 'J'he tri.r.iJ. courts' recorrls i:.hows that. the question of age was not taken light.ly. The r.onvi.r.t.s were sent t.o the dor.t.or to have their age Ascertained. These were t.he 3rn 1 4th r.3n<l 6th accused's ( now ;i_ppR 1.1 rint.s going hy s;in1P. m1mhers). After. due examination the Dor.tor concluded that the 3rn anrl 4th acc11Reds (Appell.ants) were er:1r.h aged between O ann ?. ye;:irs while the fit.h accused was aged between 17 Ann O yerirs. 'J'reaning on this the trial court meted out. t.hR nqui ren sAnt.P.nr.e on :\rel and 4th ar.cuseds. Dne to 11nr.Artr1i.nt.y of the rigA the 6th r1r.r.11Red w;:ii=; sent.enced to only 4 yerirs imprisonment. T see nothing wrong wi.th these steps. 4 • •

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, tn Ja11nchi.ng t.he A hove at.t.;:ick .-· r.eg.::ir.cli.ng SP.ntf:rnce, the I r Appellants referred to the (CAT) case of Mohamed Kessy ~ Nenga ;:ind 3 Other.a, ~r. Appeal No. 98 nf 1992 (Dsm - RP.gistr.y, unreported) . 'T'hat a11thod ty hnwevP.r presr.r ihes noth :i ng a if f erent. from what. the txia.1. cour.t. d.in i.n t.hi::; CASA. In that case_. ages of two of the Appel lr1nt.s were 1mcert.ni n. HowevfH . unlike the present case. no nttempts were made to ;:isr.ert.ain thejr age. They had been convicted with Robhery with violence .::ind sent.enr.ed to 30 years imprisonment er1r.h. Tn re(Jucing their sent.enr.e::;, t.hP. r.nur.t held: " .... :i.n view of t.he 11ncert;iini t.y of the .::ige of the 2nd ;:ind 3rd appAll;:int (2nd ;:ippell;:int. g;:ive his age as 16 and 3rd ;:ippel];:int in his defence is recorden AS 1.7 ye;:irs old) these ;:ippel 1.;:int·.i:; sbo11J.d not bave been sent.encen uncler. the mi ninrnm sentences Act. a::; they were Apparently below the .::ige nf eighteen ye;:irs .................... Tn viAw of t.hEd:r Age thejr sentenr.es of 30 years i.mprisonment i.s set .::iside. They are in suhstituti.on thereof each sentenced to 4 years imprisonmP.nt". Treading on this 1 r1nd The Children and Young Persons Ordinance r,;:ip. 13 t.here w;is not.hing illeg;:il ;:ihotJt. senchng 6th Appellant to prison her.r.111se there w;=is r.Art..::iinty regarding his rige - he was AhovA 16 ye.::irs henr.e not. ;=i "y01mg pen:;on" .. for .. t.hat. term covers only those bet.ween 12 And 16 years. For reasnns d.i.sc11ssed AhovA t.hP. Appea.l s stand dismissed. ( r.. R. Ka1 egeya) ,TtJD(.}F, .T11dgement de1i.verAd in the 9n:~senr.e of M.r.. Mdeme_. St;:ite Attorney, today the l 5fh ,Ta.nuary, 1. 999. 5 (T,. R. K;,legeyA) ,JUDGE 15\l\99