Yassin Maulid Kipanta & Others vs Republic [1987] TZHC 48 (23 December 1987)


Chipeta, J.: The three appellants, namely, Yassin Maulidi Kipanta, Nasibu Hussein Bubu and Ali Haruna Kalonda were jointly charged before Tabora District Court with the offence of being in possession of instruments with intent to commit a felony c/s D 298(c) of the Penal Code.  They were all convicted as charged and each of them was sentenced to two years imprisonment.  Dissatisfied, they now appeal against their convictions and sentences.
The Prosecution's evidence was that during the night of 2nd March 1987, one Simon Birafumba (P.W.1), who is a watchman, was on duty at Mabama C.C.M. office.  At or E about 8.00 p.m. that night, while standing at a corner of the building, P.W.1 saw three people whom he identified to be the three appellants in this appeal.  P.W.1 observed that the first appellant had a panga and an iron bar, the second appellant had three F spears, while the third appellant had two spears.  As the appellants approached the building, one of them asked, "Mlinzi yuko wapi".  Thereupon, P.W.1 entered the office and saw the appellants touching the door and windows of the building, and so P.W.1 raised an alarm.
The alarm was answered by the ward secretary (P.W.2) who immediately proceeded to G the scene accompanied by a group of villagers among whom were militiamen.
On arrival at the office, which is only 50 paces from P.W.2's house, P.W.2 and his group saw the second appellant running away from the scene.  The second appellant H was then chased and apprehended with his three spears.  On being interrogated, the second appellant said that he had been with the first and third appellants.
The villagers then started looking for the two appellants.  They later located the third appellant hiding under a tree near the C.C.M. office, and the first appellant was in a I house which is not his own.  Both of them were found in possession of weapons as described by

P.W.1.  They were then accordingly charged with this offence. A
In his defence, the first appellant said that on the day in question he was drunk and that he was arrested for no reason in his room at about 9.00 a.m.  Similarly, the second appellant said that on the day in question he was very drunk and was arrested in his B room at about 8.00 p.m. for no reason.  The third appellant said that he was arrested while on his way home for no reason, and that he too was drunk.
The learned trial senior district magistrate believed the prosecution witnesses as truthful, and after carefully considering the circumstances in which P.W.1 saw the appellants, the C learned magistrate was satisfied that P.W.1 had correctly identified the appellants.  He accordingly convicted the appellants as charged.
It is now well settled that where the evidence against an accused person is solely that of identification such evidence must be absolutely watertight to justify a conviction.  (see D R. v Eria Sebwato, [1960] E.A. 174); and where the evidence of identification is that of a single witness, there is need to test such evidence with the greatest care; what is needed is other evidence, direct or circumstantial, pointing to the accused's guilt from which a court can reasonably conclude that the evidence of identification, although based E on the testimony of a single witness, can safely be accepted as free from the possibility of error.  (See Abdallah Bin Wendo v R. (1953) 20 E.A.C.A. 166).  In the words of the Court of Appeal of Tanzania in the case of Waziri Amani v Republic [1980] TLR 250, at pages 251-252: F
   ... evidence of visual identification, as Courts of in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable.  It follows, therefore that no court G should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight.
In the instant case, there was moonlight on the night in question; P.W.1 and the H appellants live in the same village; P.W.1 saw the appellants from a distance of only twelve paces; and the circumstances in which P.W.1 saw the culprits cannot be said to have been calculated to make identification difficult.  Indeed none of the appellants I suggested any reason why any of the prosecution witnesses would wish to frame them.

The evidence of identification does not stand alone.  It is supported by other evidence; A the second appellant was arrested while running away from the scene while the third appellant was arrested as he hid under a tree; and at the time of their arrest that same night, the appellants were found in possession of weapons described by P.W.1.  Besides, the second appellant, who was the first to be arrested, named the first and third B appellants to have been with him.
On the basis of the foregoing, I respectfully agree with the learned state attorney that the appellants were properly and correctly identified.
The next question for consideration is whether these facts constitute the offence charged. C If a man goes armed to a place where he has no lawful business at an odd hour and, upon hearing an alarm, takes to his heels or goes into hiding and fails to give a reasonable explanation for his visit to the place, the reasonable and inescapable inference D must be that such person is in such place for the purpose of committing a felony.
In the present case, the circumstances in which the appellant were seen at the scene, the hour of the night, their conduct at the scene and the nature of their weapons all lead to an irresistible inference that they were there with the intent of committing a felony and that E their weapons were instruments of housebreaking.
For these reasons, I am of the view that the conviction were fully justified.
I now turn to the sentences.  In sentencing the appellants, the learned magistrate took into consideration the fact that the offenses of breaking are very common in his District F and so he felt that the appellants deserved stiff sentences.  With unfeigned respect, the prevalence of an offence is one of the factors to be taken into consideration in assessing sentences.  But it is not the only consideration.  It must be taken into consideration along G with other factors.  In the words of the Court of Appeal of Tanzania in the case of Silvanus Leonard Nguruwe v Republic, [1981] TLR 66 at page 68:
   Prevalence of an offence is indeed a factor which a trial court should always take into account H when assessing a proper sentence to impose in any particular case; but it would be contrary to principle to consider this fact either as the predominant or the only factor that must guide the court in its consideration of sentence. I

In the instant case, the appellants were first offenders and youths aged between 18 years A and 27 years; and considering their conduct, it seems to me that they acted more foolishly that criminally.  The nature of the offence itself is aimed at preventing the omission of more serious crimes.
For these reasons, I am of the view that the sentences were manifestly excessive.  A B sentence of nine months imprisonment in my opinion, would have met the justice of the case.  Since the appellants have already served eight months of the sentences, the sentence of two years imprisonment imposed on each of them is hereby set aside and C substituted therefore is such sentence as will result in each of the appellant's immediate release from custody unless otherwise lawfully held.
On fine, save for the variation of the sentences, the appellant's appeal is otherwise dismissed. D
Appeal dismissed.


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