19710524 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 46 OF 1971 ORIGINAL CRIMINAL CASE NO. 807 OF 1970 OF THE DISTRICT

COURT OF KILIMANJARO DISTRICT AT MOSHI Before I.H.M. Magessa Esq., Residnet Magistrate PETER s/.o THOBIAS ........................... APPELLANT/ACCUSED versus THE REPUBLIC ... ,......... RESPONJJENT/PROSECUTOR CHARGE: 1. Burglary contrary to section 294 o1) of the Penal Code Cap. 16 V ol. 1 of the Laws0 2. Robbery with vilence contrary to sections 285 and 286 of the Penal Code.

J U D C M E N T BRAMBLE, J. The appellant was charged jóintly with two other persons on two counts of Burglary and Robbery with violence and was convicted and given the minimum sentence on each count with the sente- nces running concurrently. These are appeals against conviction and sentence. It was proved that the complainant's house was broken into and certain articles stolen; in the course of the burglary two of the occupants of the house were assaulted. The appellant denied that he took part in the offences and the only question in issue is whether he was properly identified.. PW 4, gave evidence that he saw the copellant and another of the accused at a pombe shop and heard them planning to attack the complaina- nt that night. The information was conveyed to her and she sat up until 3.00 a.m. After she went to bed the attack came. The complai- nant and the person who kept her company said th.t the assailants used a torch and they were able to identipy, the appellant by means of it. The appellant aimitted that he was in the pombe shop on th6 day in question and the third accused confirmed that she was together with him thereby corroborating the evidence of PW 4 to some extent as to the plan to aack the complainant. The appellant's case was that he was at the pombe Sflop and left about 3.00 p.m. for home; he did not know anything about the incident but his house was searched

the following day; nothing was found and he was arrested. He called no witnesses to prove his whereabouts at the time of the offences which were alleged to have taken place. The learned trial magistrate was satified as to the identification since the statement of the appellant raised no doubt in his mind. This was a question of fact and there are no grounds to interofere with the decision. In his memorandum of appeal the appellant states that the evidence of the complainant was false. He alleged certain reasons why he was framed and in particular jealousy of the complainant towards the th±rd accused who was his girlfriend. No evidence was adduced in this point nor any other grounds stated in the memorandum. The trial magistrate could only act on the evidence before him and a party must put forward ata trial all the evidence on which he relies and which is wiLin his knowledge at the time. - . /2. ' JUIfl971 CAR 5 su; - 2 - a . - •X will uphold the convictions. As to the sentence it was ordered that the appellant serve twoyears imprisohmnt with twenty- four strokes of corporal p'lLi8hment on each count, sentence to run concurrently. Only one order for coxporal punishment can Le made and I will varr the order to read - accused to serve two years imprisonment on each count, sentences to run concurrently, . He will farther receive twenty-four strokes of corporal punishment. Subject to this variation the appeal is dismissed. elivered In Court at Arusha the 24th day., May, 1971- ee (C .E. BR/AMBLE)

JUDGE jsm tc -ji XT T11 oll OU1V1 GF TAX2l AT ARL4A APP LI JU.RIDC?1OW CfiIThAL APAL (). 28 OF 1971 0111)M CflXNINAL CR3E O, 540 OP 1970 OF TA COUi? or KILDtN3ARO AT ROMIX I flef are P.I4I. Okonkwo Resident Nagistr&ts EflNT 0fl'TIR FP)LLAjT/COUSED veraue • CARGE Stealing by cervant or clerk contrary to sections 265 and 271 of the Penal Codeb ru 4 WKIA, Ag. J. - he appellant wan convicted of itea1in from hir emloyar tt0 ITAIM Toath League. B. was aentenced to two yearn imprinon- ment with an order that he ohould suffer 24 atrokes of the loans under the Minimum Sentenoen Act. The conviction is fully suport.d by the evidence on record. The learned judge who sdiitted this apasl commented that "loss of exhiite may be fatal.H At firat I was und*r the impransion that exhibits were lost before the appellant was tried and that the eellant had rained this iaoize in his putition. It now transpires that the trial court had all t a exhibits before it. They wee lost after the apel1ant wa convicted. The learned judge made his comment after calling for them and being informed of their disappearance from the Piatrici Court at Moshi. Being less experienced tean my learned brother who made the Coinent I have searched for authority to support the auggeation, tLiet an appellant could be acquitted if the exhibits are not available at the time of appeal even if they were available at the time of his

conviction. My has been in vain. I am thue unable to follow up the atggestion aar-cb by my learned brother because in my humble opinion the evidence against the epeLLant was no teliin that the trial court had no alternative except to convict him. I will therefore not interfere with the conviot(ql which :x . unb.sitstirgly upholdo i am not sure, thoug14 that the offence with which the appellant was convicted fa1l within the ambit of the Minimum Sentences Act. Though the offspring of ITANUO the Tenu fouth League does not fell into the category of a Politioal party, a trade Union or even a charity.l theref ore find it hard to juctify a senten*e under the Minimum sentencoa Act for 3teeling by a servant of the Tanu Youth League, the learned tst. Attorney's eabmienion to the contrary notwiihet:ndthg. Raving found no authority in support of the proponition that the TANU Tough League is a scheduled organ under cap 526 9 I remain in oonsIdersble doubto It is a cardinal princia of oriinal law that any doubt must be resolved in favour of the appellant. Ao:rdingly I aet aside the sentence and order for iGorporal punishment imoaed on the appellant. In eubstitution, I sentence the aocus*d to fifteen months imprisonment. The appellant shell not suffer any ocrporal punishment. I do not propono to interfere with the order for penntion, which I oonfiri Save as horain directe4 I diai*iae the appeal. Arueha 1/10/71 (M.R.A. KJIKIA) AU. 3J1 ILO I jam