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IN THE HIGH COURT OF TANZANIA .AT TABORA car.rrNAL APP~L no. 13 CF 14 OF 1997 OR'L FiWflI Sl-.·.INYANGA DISTRICT COURT CRIMINAL CASE NO. l/96 M4 DEHA THA BIT.•• •• • •• • •• ••.••••.••,•• .A PPELL.4NT VERSUS THE REPUBLIC •••••••••••••••••••••••••• RESPONDENT JUDGMENT J. M. MA CKANJA, J • llhdeha Thabit and ilhg:i,ng:i. Shija, the first and second appellants in that order, were joinly charged with a third person who was acquitted of robb.ery with violence c/s 285 and 286 and of assault causing actual bodily harm c/s 241, ef the Penal Code. The evidence \\las fairly brief. Mrisho Nassoro (PW 1) lives at Ngokolo area in the Shinyang!! Municipality. He was, on the night of 3rd Junua:ry, 1996, awakened by burglars-who fercefully en tared his bedroom threatening to kill him, By reason of the said threat of violence the criminal elements stole one radio set worth shs. 52,0IJ/= and cashll:3,.Ji/=4 The complainant swore that ·'.he recognized the appellants I because he knew them bef ere this event and that there was light. .Ii part from recognizing the 1 burglars the appeThn t shouted for help, Ismil Yusufu (PW 2) t..ient to his ait, In the mean time PW 1 succeeded to arrest the first appellan_t. Is.rre,il Yusufu did not render much assistance, howevc;r, because he was attacked as soon as he opened the window. He was slashed With a rratchet. When calm returned to them PW 1 rushed PW 2 to hospital, P'3,ssing through the Police Sta ti on where he reported the incident. There is evide.:1.ce that PW 2 k,.".Lew the appelan ts even before thi~ccasion because they were co-tenents in the same residential premises, Ilhdeha Th3.bits the first appellant, si-iore that he heard the complainant's alarm for help on the .rre,terial nl. ght • He wen t ou t ....,o ·:rondar 1··,,;. t h e assistance; only to loo.rn that the complainant had per sued the · a thieves • •. . •/2 / ,/ - 2- When PW 1 returned he is alleged to have said that the thieves had disappeared i.ti. the graveyard·.; Accordi!1g to the first :..,J appellant the suspects wore relatives of one Said who is a watchm'l,n at the doca Cola Company premises. He was therefore sur,Prisod to -find that the complainant changed 'his mind and turned on furn. On his part the second appellant tostifi ed j tha,t he was ;:i,t the Railwa,y 9tation vthen !)-8 was arrested,by members of a Sun 6usunsu group wh.a surrendered him to the. Police aft0r some time: of in terroga ti on. The appellants were ul tiffi:l, tely convicted at the end of the trial' and were consequently sen tonced to fifteen years imprisonment on the first count and to a, fine of shs, 10,000/= or one year's imprisonment in d::,fa.ul t. :Mr. Ndungu.ru 1 l~arhed senior Stctte Attorney, has submi ttod t.b.a t tho ofL.mcG of robbery was proved· because there was a violent thoft and that the perpetrs. tors of that offence 1 wore recognised by the victims. It is his submission that tb:i appellants werG rocogni~ed because thore was li gh. t. It i"s true th;:i. t PW 1 swore that th ore 1rJas light, but ••·-~ did not say what type of light there was. He also ,testified T' ~: that he arrested tho first appellant soon after the robbery. Whi=d is rather s tran f'G is that he did not say when he f.A.o.dad 1 over the first appollan t to the hli ce. One would expect that he should have dons· so when he .P'3,ssed through the, , Police · Sta ti on on his way to hospital i~.h.il e pscorting PW 2. There is no 0vi dence in that behalf. Now. as· regi, rds the .. testimony of PW 2 it does not go further than claiming t.ba t tho appellants vJe,l'G his co-tenants. He 'flas, according to his own testimony a tta :ked suddenly when he opendod t:1e winda>w. This implies til3,t lw did not have enough timo to recognize his assailants. Indeed, he d•es not say that thoro was light which could have as.eisted him in vievhng his attacksrs who fled as soon they 1:iad injured him. A1 though, therefore, there, is proof th'3.t thoro was a violent theft as Mr. Ndunguru has pointed out, tho evidence that tends to liuk the appellants to the commission.of t1iat crimG ;:,tands on qui ck sand. If indesd the complainant "lnd l?W 2 had recognized tho appellants this fact should,havl.').beeu disclosed to the . Unfortunately n•--'Po11ce ufr1c,.:-ir Police Officer~s called to testify, which wea,kens further the prosecution case. - 3 - It is.also my consid0red view that wer0 it.possible for PW 1 and PW 2 to r 1ecognize the robbers, they ought to have givan evidence describing the cl other they wore. It would not have been out of place for PW .2'. s other co-tenam ts to have 1 testified. Over-all, I am not, with due respect, persuaded by Mr~ Ndu.ngu_ru that the prosecution prov,2d their case beyond any reasonable doubt, Upon the a b0v,, ground I all ow the appeaH Consequently conviction in rospoct of ea ch of theappellan ts on the two counts !:L rd qua sh9d. The son tonces that woro imposed on the ap;>ollan ts on each count are sGt asido. It is dircctGd that -the appellants be discharged from Prison forthwith unless Otherwise lawfully hehl on account of. · other Illa, ttors. I J. M. MA CKANJA JUDGE • .Appearanc0a Mr. Ndun,guru: SSA: For DI'P ~ppollants: Absent at their ovin option~ I HEREBY CERTIFY TIF! ;l1 ThIS IS TRUE COPY OF THE ORIGINAL. ~f•I DISTRICT 1 tlEJGISTM a . ·TABORA• Ii