(CORAM: MROSO, J.A, KIMARO, J.A And LUANDA J.A.) RASHIDI JUMA. APPELLANT VERSUS THE REPUBLIC. RESPONDENT

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1 IN THE COURT OF APPEAL OF TANZANIA AT TANGA (CORAM: MROSO, J.A, KIMARO, J.A And LUANDA J.A.) CRIMINAL APPEAL NO. 232 OF 2006 RASHIDI JUMA. APPELLANT VERSUS THE REPUBLIC. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tanga) (Mkwawa, J.) dated 20 th January, 2006 in Criminal Appeal No. 18 of 2005 JUDGMENT OF THE COURT 17 th & 27 June 2008 LUANDA, J.A. The above named appellant was charged in the District Court of Handeni with robbery with violence contrary to sections 285 and 286 of the Penal Code. He was convicted as charged and sentenced to 30 years imprisonment as mandated by law. He appealed unsuccessfully to the High Court (Mkwawa, J), hence this appeal. The appellant fended himself in this appeal; while Mr. Vicent Tangoh learned State Attorney represented the Republic. Mr. Vincent Tangoh did not support the conviction.

2 Briefly stated, it was the prosecution case that Rashid Mhina (PWI) a Medical assistant, who lived at Kideleko used to go to Magamba Dispensary his working place, by bicycle. His bicycle, a phoenix was a new one. On 14/5/2002 around 8.00 am he pedalled his bicycle to his working place and at the back seat of the bicycle he carried a black bag. While at Msasa village, at a place described as a forest area without houses around, he was attacked by three youths. The three used machetes. Rashidi Mhina (PW1) was frank in that he said he did not recognize any of the three. In other words the three were not familiar to him. When he was attacked, he raised an alarm for help. There was no immediate response. The three fell him down, cut him with the machete and one took his bicycle. It was at that juncture whereby Amiri Mhando (PW5) in response to the alarm raised, emerged. One of them who he said was the appellant, pedalled off with the bicycle. The bicycle had a black bag at the back seat. The remaining two took to their heels. Amiri Mhando (PW5) picked the victim and sent him to the village Secretary. Around am on the same day, Athumani Mohamed (PW2) and Khalfan Nkondo (PW4), residents of Msasa Village where the incident took place, saw the appellant within the village riding a new phoenix bicycle which had a black bag at the back seat. They stopped him with a view to requesting him to deliver sad news of the death of the relative of Athumani Mohamed (PW2) to one Mzee Msindo of Chanika village. The appellant told them that he would not reach that place, he was going to Kibaoni and he was in a hurry. The appellant left. It was after the departure of the appellant they came to learn that a certain youth was robbed his bicycle. They thus realized that it must be the appellant who robbed him. The appellant returned back to the village without the bicycle. The appellant was arrested. The bicycle was recovered on 22/6/2002 from the house of Abdallah Mshana (PW 6). It is reported that it was sent there by one Athumani Abdallah. Rashidi Mhina (PW1) duly identified the bicycle by its frame number. 2

3 In his defence, the appellant denied to have committed the offence. He said on the day in question he was attending to his shamba from 6.00 am till 6.00 pm. On returning home he was arrested and finally charged. Both courts below found that the appellant was among the group of three youths who robbed the complaint. The trial court relied on the evidence of PW2, PW4 and PW5. The first appellate court also did the same. Both lower courts were satisfied that the three mentioned witnesses were witnesses of truth. In his memorandum of appeal the appellant has raised eight grounds of appeal. Six of them essentially touch on the question of credibility of the three prosecution witnesses namely PW2, PW4 and PW5. The other two are not grounds of appeal; they are complaints. The two complaints are: One, the appellant complained as to why Abdallah Athumani the one who was actually found with the bicycle was not called as witness. And two, why an identification parade was not conducted so as to eliminate any error as to identity. On the other hand, Mr. Tangoh, who did not support the conviction, submitted to the effect that the prosecution case is not strong enough to ground a conviction. He gave four reasons. One, PW1 did not identify his assailants. Two, the bicycle was not properly identified. Three, the non calling of Abdallah Athumani who had the possession of the bicycle. Lastly, Amiri Mhando (PW5) did not meet the assailants at the scene of crime. From what we have summarized above, it is clear in our mind that all the grounds raised boil down to the question of credibility of witnesses and whether the Court could interfere with the concurrent finding of facts by two lower courts. The question is whether the Court is entitled to do that. It is now settled that a second appellate court is entitled to evaluate evidence afresh and make its own finding of fact only when there are misdirection or non direction by the first appellate court (DPP v. Jaffari Mfaume Kawawa [1981] TLR 149) We pose and ask ourselves whether there are any misdirection or non-direction by the first appellate court. Both lower courts found out that PW2, PW4 and PW5 were credible witnesses. PW5 said he saw the 3

4 appellant at the scene of crime and shortly thereafter pedalled off with the bicycle which had a black bag at the back seat. PW2 and PW4 also saw the appellant with the bicycle which had a black bag. These two were at zero distance when they saw the appellant with the bicycle. That description of the bicycle tallied with that stolen from PW1 by force. It is crystal clear that that was the very bicycle taken by force from the complaint (PW1). These witnesses knew the appellant very well. He is their village mate. And since the incident occurred during broad day light, the question of mistaken identity does not arise. The evidence of these witnesses is very strong notwithstanding the failure to call Abdallah Athumani, the one who had possession of the bicycle. In actual fact both lower courts did not base their finding on the evidence of PW6. We are satisfied that both lower courts properly acted on the evidence of PW2, PW4 and PW5 to convict. There are no misdirections or non directions. And this in turn also clears all the doubts raised by Mr. Tangoh. With due respect, we are unable to agree with him. In sum, the conviction is sound in law. The appeal is devoid of merits. We dismiss it in its entirety. DATED at TANGA this 24 th day of June J.A MROSO N.P. KIMARO B.M. LUANDA I certify that this is a true copy of the original (W.E. LEMA) 4

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