19701016 TZCA Dar es Salaam3

At Dar es Salaam Criminal Appeal No. 5 of 1970 ( Original Criminal Case No. 1501 of 1970 of tho District Court of '11an1c.a District at 'fang.a). JID1A MHALU1WA •••••••••••• APPELLAN1r versus THE lf©PtTBLIC •••••••••••• Charge:- Stealing from a person of another c/s 2f, of the Penal Code. JUDGMENT BAIDI, J. ... The appellant and one Salimu Saidi, who has not appealed, were convicted in the District Court of Trmga. for stealing from the _pe1°son of ~~other and were senten.ced to varying terms of imprisonment. The appellaut appealB against the conviction • .In brief the facts v.r.·e that the complaiiw.nt, a. police officer, was sud.denJ.y c:;~11:fron ted by two persons in the stree·t while he war{ returning from a Tombola. at about mid-night on 2nd !fay t 1970. '.l.1he men came behind him. One of them namely Salimu Saidi, held him by the hand and pushed. him to th.e ground and then took out Shs. 15/- from his pocket. The complainant sayg thut Salimu. h,tnded over the money to the appellant who bet;.~an to ru.:n .away. rrhe complainant chased them and caught Salimu but the appellant escaped with the money. While cht,einc these men the complainant was shou.tinl£ 11 thief thief' 11 and two men, Joseph Mhina and two men, Joseph Itlhina P, W,3, and Athuman KiJ.ima, P. w.4 came to help him, The main complaint of the appellant is tlwt he has been wrongly identified as the person who was with Salimu, Both he o,.nd :3alimu admi tte<l. in their untsworn statements that they were at the Tombola t,ill about mid-night but he ch,ims to have le:t't earlier and that he left alone. Aooording to him the compl~1.inant could not huve reoognined him as it was dark. The complainant stated j,n hie evidence that he knew the appellant from befor·e nnd clearly si;,w him that night and saw him receive the money \ from Salimu i::,,,"1d run away, with it. It does .not appear to me th.at the scene was in an cni;jrcly dark area. Athwn211 Kilimn P. w.4 1 stated that after hearing the complain:int' s shuuts he looked out through his wondow and saw ·H1e persons who were rurming,. His house is near the roe,d. Tb.is means that there was light on the street and with this l:i.ght the complainant could have certainly .identified persons he had known before. Like the learned Resident Ifagistrate, I am sati13fied that the appellant was properly identified as the per.son who was with Salimu, the other accused in the caBe. The next issue raised in the appeal is whether or not in receiving the money stolen from the complainant by Salimu a.nd running away with it in the way he did he could have been ~-·intly charged with Salimu. Certainl~ ~1.a took part ~n the. stealing the. money. He and ~alimu followed the complainant and. Sali.mu held the oo plainant, knocked h:i.m down, took out his money from the pocket, and handed it over to the appellant. It is clear that he was acting jointly with Salimu and he was therefore properly convicted. I • Both the appellant and Salimu. are lucky in th.:-i.t they were not charged with robbery u.s tho facts of ·the case definitely disclose au.ch en offence. One of them used force on th~ compla.irJ..f•.nt to succeed in getting the money. Salimu who had previouj,-j~·.cony;j,c:t~ons ,1 was awa1.'ded ni.ne months imprisonment. This certainly ·Hi cr.Ti·gh:t sentence particularly when these sorts of offences are now 011 the increase. I do not p.ropose to revise the sentence pa.seed or1 t%1imu but I feel that the term of four months imprisonment awarded to the appellan't is ir1ac\equate and I inoreaf3e .it to ni11e months I in1priso.r.me!"J.-~.. Q-•~ :Oar es Sal.:~am. (A. SJl.IDI) 16th October, 1970~ JUDGl!;.