na TZHC Arusha 14

r V-a le- O_A ) ~ In the High Court of Tanzania at Arusha. Appellate Jurisdiction High Court Criminal Appeal No. 25/72 C/F Cr. App. No 2 /72. Original Criminal Case No.209/72 0! the District Court of Pare District at Same. Before C.H.Msamati. Esq. District Magistrate. I. Credus sb Sawaa 2. Seceo s/o Okoth z- ( (Original Accuseds.) versus The RepubLie ============Re ep o nd ent (Original Prosecutor) CHARGE:— Robbery with violence ole 285 and .286 of the Penal I Code Cap. 16 of the Laws. 'amble, Jo These are appeals against conviction and sentence o a charge of robbery with 'iriolenoc contrary to sections 285 and 286 O f the Penal Code ,The appellants Gredue Sawaa and Seneo sb Okoth were charge&j$ntly with another person. The complainant stated that at 9.00 p.m. on the 25th. June, 1972 the other accused called him. He went 4by the door of a bar and saw the appell ants; they all held him, beat him and grabbed she, 655/25 which was in his packet. He sounded an alarm at one person P.W2 came, This witnes.è saw the three people beaxing the cimplainant. S The appellant Gredue s/o Sawaa, said that he was not present at the time of the attack. He had no witnesses. The appellant Setne. s/o Okoth admitted that he beat the complainant and said that it was because he had seduced his wife. He produced a letter purported to have been written by the complainant to his wife and this letter was in the hands of the police. The prosecut1n had every opportunity to prove that the witness did not write the letter, if this was a fact. The learned magistrate did not consider this defence. It was in my view sufficient to raise doubts as to whether there was any robbery., It was in the complainant's int.St to make out as bad a case as possible. It will not be safe to uo1d the oonvict,on. I will Quash the conviction and sentence and sub- stitute a a coviotiou for assault cauéing actual bodily harm c/s 241 of the Penal Code and a sentence of nine (9) months imprisonment. The appellant Gredue 9/o Sawaa said that he was not preeent at the time of the attacJ, Both the complainant and his witness said that they clearly identified him. In his petition of Appeal be olais that he was implicated because he was a friend of the other appellant. The trial magistrate was entitled to hold that this appellant was present and took part in the assault 4. For the reasons gi'en above I make an order :.Bimilar to the one above. 2/.