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IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM - 4• (Mwanza Registry) APPBI,LA. TE JuRISDICTION HIGH COURT CRIMINAL APPEAL NO. 115 OF 1974 ORIGINAL CRIMINALCASE NO. 335 OF 1972 V OF THE DISTRICT COURT OF NASWA DISTRICT AT N1SWA Before N. L. Massawe Esq.,....District Magistrate SDI ASTIAN KIMJAG-A ....................APPELLPNT versus Tin REPUBLIC ................ .......... RESPONDENT Charge: Robbery with violence contrary to s.285 and 286 of the Penal Code. JUDGEMENT NYALALI, AG, J. - The Appellant in this case nanely Sebastian Kimwaga, was charged with Robbery with violence contrary to sections 285 and 286 of the Penal Code. He was convicted and sentenced to the legal. tninimum sentence of seven years imprisonment. He now appeals to Court against both conviction and sentenoe. The facts of the case which are not in dispute are that the Appellant and the first prosecution witness. are related by marriage. During the first half of September, 1972 the Appellant was arrested by the poiic.e and was subsequently charged as stated.above. At the trial ofthe case the prosecution led evidence to show that the Appellant had been together with the first prosecution witness at Lalago Trading ,,eiie in Naswa District during the early night of the .7th September, 1972. There was also a third person in their company. At about 10.00 p.m. the Appellant together with the first prosecution witness and the third person decided to leave the trading centre. On their way home but while still in the trading centre, the Appellant, assisted by the third other person thet upon the first prosecution witnessi threw him down to the ground, took some three hundred and forty shillings from him and ran away and escaped from the people who appeared at the scene in response to the alarm and noise raised by the first prosecution witness. Evidence was given for the prosecution to shoq that late that night whiLe Appellant was at Lalago Police Station where he had been escorted by the people who came to his rescue, the Appellant appeared to inquire about information he had received alleging that JppëJlant had ró'bbed the first prosecution witness. -2- The first prosecution witness identified Appellant as being one of his two robbers. Subsequently, Appellant suggested to the first prosecution witness and to the police that the first prosecution witness should accompany Appellant in looking for and apprehending the second robber so that the money robbed may be recovered. he first prosecution witness and the police agreed to this suggestion. The two left and were not seen again until a few days later when the first prosecution witness returned alone to police station. Subsequently, the police arrested Appellant. Appellant in his defence denied being anywhere near Lalago Trading Centre at the material time. The learned trial Resident Magistrate found as a fact that Appellant was in the company of the first prosecution witnes at lalago Trading Centre during the material night. There was ample evidence to support that finding. There was, however, something in the prosecution evidence which should have put the learned trial Resident Magistrate on his judicial guard. Firstly, there was only the word of the first prosecution witness against the word of the Appellant regarding the identity of the robbers and secondly, there was the very abnormal cohduct of the first prosecution witness at the police sation in agreeing to Appellant's suggestion made at th Police Station. It is very unlikely, in the natural cottsê of human affairs, that a complainant who has beei-i: ±obbed and who is sure of his robbers, would agree to a suggestion to accompany one of his robbers to go- and look for and appiehend the other robber. I think this part of the prosecution evidenbe should have given rise, in the mind of the learned Resident Magistrate, to a reasonable doubt and Appellant should have been given the benefit 0±' thatdoubt. That being sb, I find that this appeal ought to be allowed and ishereby allowed byquashing the cbnrictiOn and setting nzldo the sentence nd order for- cothpensation and directing that Appellant should be set -free forthwith unJs held for other lawful cause. Delivered in open Court at Dar es Salaam this 19th day of Pebrtary,1 975. • •. ' y . (F. L. a]Ali) AG, 'JUDGE - - 4 ..- .. . • L - — L .1• . ( '- €, c:;: Mon r - I . - ._ j__• , yj _t tEAV fr; ( j-r : K .7 • - •-'rr -r : •L (_•_ 1 I .r -. 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