na0319 TZHC Mwanza

PT M J1iZA HIGH COURT CRIMIiTPL h Fr'?!iLS NOS. 523/71 AND 180/72 Original Criminal Case No. 34 of 17I of the District Court of Bukoba District at Bukba Bäfdrc HaS. Nkátte&q. Resident Iajstrate. JCSEF:x PiUL AND ) • •. • • • • . • . . . . . . . . . . . . . .AIP.?LLANTS PAULO KACHUMITA ) vc-rsu.6 TH1' P.i'PUBLIC • a • . • a a . . . • . . . . . . . . . . . . . . . . . . . 2E'SPONDNT CHARCE Robbery c/se 285 and 286 of the y Penal Code, J U P B.1.1 L' N T. LL—KINDY, J. Joseph Paulo, the first appGllanti and Paulo (achumita, the second appellant, were jointly charged with an convicted of ro bery contrary to sections. 285 and 286 of the Pna1 Code Cap. 16 They were eñ -tenced to imprisonment for. 2 years and to suffer 24 strokes of ôorporal punishment each They appealc-d against convictions sentences and orders Pfter nearing this ap-eall I allowed the apal of the fii.st appellant, and I dismissed the appeal of the second appellanta I now give my reasons for ordering so On the. 13th of January, 1971, Theobald Bifa1.i (P...3), the complainant, was walking along a ±OQtpath fror tie direction of the District Council building towards Nyakanyasi area within the township of Bukoba. It was at aout 11 a.m It was also rainingi As he wq)ked along, he met tile first pe11ant walking along the same footpath but in the ppposite direction They greeted each other and then each per;on continued with his walk. And after wal1cng fo "some few .paces", ,the .complainant met the second appel°1antwhowas also proceeding in the same direction as the first appellaiito The complainant said that the second app1lant asked him where he was coming from, and he pointed out the direction he came from, But hwen no wanted to "move" the second atipellant produced a knife and pointed it towards his chest. He then ordered him, in Kiawahili, to raide up his hands ("Mikono iuu") after he had told him to produce money. The complainant raised his hands up. The complainant said that he had cash ? She. 140/— in the back pocket o is r'ajr of trousers. The. second appellant searched his pockets and took away the Sha. :140/—. Having done so, the complainant said, the second appdIlant went "toards the direction I (ta complainant) was coming from". The complainant said that, at that time,,the flrst appellant had already walked ahead and he did not, look to see if the first appellant waited for the second appellant or not.. The comlàinant immediately rusned to the Police Statioh wher he reported the alleged incident The police party set out for the described spot, without the complainant, and after the complainant had described the appearance of the second appellant. As the police party approached the alleged area, they Saw the two appellants coming out of a patn and they joined the tarmac road. The appellants were stopped on suspicion. They were abou1t 2 miles from the alleged scone of the incident.' Upon being searched,....they were found in possession of a total of.$hs.' 105/25, The first appellant had ailS. 52/55 and the second appoilarrt was found in possession of Shs. 52/7 0 . Th monc- was in varied denominations. The money, whicn was taken from' the ompla.inant was also in varied denominationa although the complainant was not d.c-ar on,this point The robbery took. place atabcu't 'U. a.m., . . . . . . . .-.. . .2/ -w 2/ and the appellants were anprehended soon altar 12 noons on the same day, 13th of January, 1971 at about 2.15 p.m., Dee- ctive Sub—inspector imrose (P..i) conducted an identification parade, where the second appellant was the suspect ahd the comrlainant picked the second appellant "without hesitation", and on the 14th of January 1971, during another parade in which the first appellant was the suspect, the complainant identified the first ap'el1ant as the person he had mat on the way. joint charge was then preferred aainst both appellants. .Jith due respect to tiie learned til ma:istrata, there was insufficient evidence a'ainst the first appellant. There was no doubt that the complainant mat the first appellant before he mat the second appel1nt,. but there was no evidence to snow that the two people were on a joint mission4 The complainant did not say that he was attacked by the first appellant as well. In fact, he said that he was not aware of the first appellant, who had already passed him,, had even "waited' for the second appellant or not. Surely,, if they were on a joint mission s thc-y would have been seen to act toCethr. The complainant said that he did not complain against the first api- ellant. He simply complained against. the second appellant who he described to the police. He said that he identified the first appellant as. a person he had met before he met the second appellant. It is correct that subsequently the two appellants were found together. The appellants admitted this, but 'thay said that the;;' had met after coming from their respective homes. Therefore, there can be not much weight to this evidence. The same can be said to the moneyi In so far as the first a - ellant was concerned, there was nothing to suggest that the money he was in possession of was part of the money robbed from the complainant. To this extent I we-s satisfied that the conviction of tia first - appellant could not be upheld. On the other, hand, tic-re was sufficient evidence against the second appellant.. If celieved, the complathant had ample time to observe the person wno accosted him and threatened him with a knife and took this money when he was undr threat. .. And subsequently he identified him 7 within a mttcr of hours, at an identification parade (Thii.). Like the lerned trial miot'retc I find that the second appellant was idc-ntifid as the one who held him 'up under thr'.t of knife attack. Iaccc-pt that the money the second appellant was found -in possesion of did not tally witie the amount taken from the complainant. Tiec- money found was not sufficiently proved to be part of the - stolen: money.. But bearing in mind 'that there was an interval of hours betwe c-n the taking of the money and his arrest, the second appellant had ampiG time to dispos'c of the money or to alter its form. The guilt' of the second appellant was proved beyond reasonable doubt. . The learn - d itte Attorns7 t Mr. iahim, did not supprt the conviction of the first appellant but he supported that of the second apal1ant on the basis of the evidence, . . The scntenc imposed on the second pc1Iant (as that imposed on the first appellant) was the minimum scntnce for scheduled offence of robbery as it was then provided for in the repealed Minimum • bcntences Lct, 1963 Cap. '526.' ' There was - no cause, for complaint against the sentence it 'being' the ninimurn sentence provided for and there' being no special circumstances. Hocvcr, the record showed that th1f appellants hd chosen to remain :in remand prison pending tic-c- determination of their apa1. I have had occasions to point out that such choise did hot exist in respect of scheduled oifencc-s '(see rcpe'alc-dSec'ion 7 (3) of Cap. 526). The a'ellants, thc'refor,,: sieould not have been'allowad tochos' to.remañn in remand -rison pnding ' fr - •..e.....*..:.3/ - -'I V datermination of thoir raspeotiva appals. Delivered in Court at Mwanza on tie 19th day of Nrch 1973. Z.N. 'L—IKIITDY 5tJDGL 19TH HiCH 193. ippe11ants absent. Mr. itabaye - for haspondcnt/Rcpubiic.