19710910 TZCA Dar es Salaam

i • IIM COURT OF TANZANIA

AT DAR ES SALAAM Righ Court Criminal Appeal No. 365 of 1971 Original Criminal Case No. 21 of 1971 of the Distric,t Court of 1tiaarae District at Xisaraw before P. B. Bikongoro Bequire, District rnagistrate AI2ANI ?BGU ABI . . . . . . APP!LLAN 0.. 1 6 (Original Accused No. 2) orsus THE RBPUBIIC . . • . .• . . .. . .. . . .• . . . . . 1.ESPO1DNT (Original Prosecutor) Charge: Robbexy contrary to sections 285 and 286 of the Penal Code s Car. 16, Vol. 1 of the Laws, Ji BIRON J.. - The appellant was convicted, together with another man who has not appealed, of robbery, and they were each sentenced to imprisonment for three years. He is now appealing Evidence was given by the complainant to the effect that one evening as be was going from one pombe shop to another he was set upon by the appellant and his co-accused and robbed of biVrist-watcb He complained to the proprietor of one of these pobe shops, one Peter George, and also to the ten-house cell leader, but the appellant's co-accused claimed the watch as his, asserting that be had hougbt it at an auction. flowever, the complainant pro iuced a receipt thich supported his claim to the watch, that he had purchased it on that very day that it was stolen. Although the appellants co-accused called three witnesses one of them to testify that he was present when be bought the watch at an auction, he however stated that he never

accompanied the said co-accused to an auction, nor had be even ever seen him with a watch. Another of his defence witnesses merely stated that be saw the two men, the complainant and the appellant I s co-accused, in the pombe shop belonging to Peter George arguing over the watch, each claiming it as his property. But the evidence of Peter George himself is extremely relevant, not so vmoh in respect of the case against the appellant' s co-accused as in respect of the case against the appellant, for he stated that be saw both the appellant and his co-accused together in his pombe shop, then the co-accused went out leaving the appellant behind in the pombe shop, and he then returned with the watch followed by the complainant, who claimed it as his, and the appellant then left, leaving the two men arguing over the title to the watch. 0 As noted, Peter Geore was not even called by the appellant, and according to his evidence the appellants co-acciised would appear to have possessed h±nself of the watch when lie went out of the pombe shop leaving the appellant behind, In the circumstances, as agreed to by learned State Attorney, it would be most unsafe to uphold the conviction against the appellant0 The appeal is accordingly allowed, the couviction - which is not supported by the Director of Public Prosecutions - is quashed, and the sentence imposed thereou is set aside - If the

appellant is not otherwise lawfully detained in custody he is to be released forthwith. Subsequent to the magistrate having sentenced each of the accused to imprisonment for three years he discovered that he had f.iled to award the .cttutory corporal punishment whith is mandatory on a conviction for robbery, the offence being a scheduled one under the Minimum Sentences Act, and be has accordingly requested this Court to impose the corporal pimishment on the two convicted men in its powers in revision0 It is thereforeL now necessary to deal with the sentence Imposed on the appellant's co-accused in the exercise of the Court's jurisdiction in revision. ObIou.ly the sentence imposed on the appellant's co-accused couldnot be anhanced without giving him an. opportuxity of showing cause why it should. not be enhanced. In this connection it is pertinent to note that the complainant testified that he had bought the watch for She, 40/-, and, as the appellant's co-accused appeared In court as a first offender, the court had discretion to impose a sentence less than the prescribed miniirn, if it found there were special circumstances justifying such a course. However, the magistrate obviously did not consider that therqere any special circumstances, nor can this Court find any particularly in view of the magistrate's direction in sentencing that the offence was prevalent in the area and

called for a deterrent sentence, EVen so, it Is more than likely that, had the magistrate awarded thetatutory corporal punithment,he would not have exceeded the prescribed minimum sentence of Imprisonment. Therefore, in all the circumstances, I accede to the request to award the corporal punishment, but reduce the sentence of imprisonment imposed to the prescribed mininiwn of two years. In the result the appeflants co-accused is to serve imprisonment for two years and is awarded the statutory twenty four strokes corporal punishment. Delivered in Court at Dar es Salaarn this 10th day of September 1971. (Sgd.) PHILIP BIRON.