19710402 TZCA Dar es Salaam

• c-.-- IN THI hUGH COURT OF . TANZANIA T DAR BS SALAAM.. Criminal Appeals Nose 863 of 1970 and 97 of 19710 (Original Criminal Case No. 206 of 1970 of the District Court of Nbeya District at I4beya Beforo T.B. 1utacyQwa, Esq., trict Magistrate) $'IICIRI MWASHING (Cr.Appea.i 863 of 1970) •'"" BRNA MiJNJ1i (Cr.ppeal 97 of 1971 )) versus THE REPUBLIC WPONDENT CHtRGE Robbery with vièlence c/s 285 and 286 of the Penal Code, Cap. 16, Vol. 1 of the Laws. J.UD 0 E WE NT. BIRON 1. The two appellants were convicted together with five other accused who have not appealed, Of robbery and they were all sentenced to imprisonment for two years and were each awarded the statutory twenty- four strokes corporal punishment. They are now a pealing and their appeals are consolidated. In this judgement I am retaining the descriptions of all the accused as they were described in the lower Court, the appellants being the second and seventh accused.. vid.ence was given by the complainant who described himself as a peasant and a native doctor selling local medicines to people who suffer from different types of iL.iiess' that on the 19th of March last year, he entered the Ijomba local poinbe olub, where he found all seven accused drinking. After he had ordered a drink and apparently before he had an opportunity of drinking it, the seventh accused approached him, seized his medicines and threw them down on the ground saying that he had no trading licence nor was be a TANU member, and In addition he accused him of being the %)/ witchdoctor. The complainant produced his trading licence and TANU membership card, which the seventh accused tore up. Then all the other accused assisted the seventh accused in ejecting him from the pombe club. He raised an alarm but nobody came to his assistancoe, and he asserted that he.saw the seventh accused taking his money, ihich amounted to She. 534/901 from his pouch.. When he remonstrated with him, he threatened to kill him and he accordingly ran away. The complainant went off crying, and as it was night time by then he was put up by one John Hepa, who on the following morning took the complainant to the local Ten House Cell Leader, Amri Maneno. This latter took the tow men to the local 'PANU charman, who happened to be the seventh accused, and when they reached there, the complainant immediately identified him as one of the persons who robbed of his money and his medicines. The evidence of John Hepa was surported by that of the Ten House Cell Leader., Mri Maneno, who restified that when he took the complainant before the seventh accused who, as noted was a local TANU ohaiman, the .coinpainant immediately identified him as one of the men who had robbed of his money and medicines, and the seventh accused then volunteered to find, out the men who had robbed the complainant, When the six accused were duly pointed out by the seventh accused, the complainant then identified thorn as having participated in the robbery perpetrated on him. A\ ..... 2/ i With the exception of the seeon4 accused who made an anaffirmet statement and the seventh accused who gave evidence on oath, or rather on affiemation as he is a Pagan, all the accused elected to remain ileflt. The second accused denied having participated in or knowledge of, the offence. The seventh accused whilst admitting that he saw the medicines catted on the ground in the pombe club, could not account for their preenOe there when he called, a pulio meeting so that the oompainani. He further stated that when he called a public meeting so that the complainant could pick out the men who had robbed him, the 1 first, second, thrid and cixth accused all admitted to having robbed the complainant of hi medicines, but denied stealing any money from him. Subsequently the fourth and fifth aoousd were arrested and they also admitted having robbed the complainant and they were all duly charged. In his judgement the magistrte, after reviewing the evidence, directed himself that there Was no evidence to support the allegation that he had been robbed of any money, but with regard to the medicines, he found that all the seven accused had participated in robbing the complainant of his medicines and he statedt inter alia, in his judgement: "The fact that accused Noes 1, 2, 3, 4 9 and 6 elected to remain silent in court when their time for their defence came, makes me believe that they really committed this offence of robbing the complainant of his local medicines". This, as very rightly submitted by learned. State Attorney 1 is a very serious misdirection, and learned. State Attorney, e--went further and apparently because of this misdirection, she felt herself unable to support any of the convictions. Apart from the fact that the second and seventh accused did make their defences, the misdirection in respect of the five accused is not necessary fatal to the convictions, provided such conviøtions are supported and justified by the evidence, As I have remarked reeently in morethan one judgement in dealing with the functions and duties of a first appellate tribunal, quoting from the case of Dinkerrai Ramkrishan Panda7 v.I. (1937) E,A.336 at page 337, "that on first appeal an a'pollant is entitled to have the apeilate court's own consideration and view of the evidence as a whole and its own decision thereon", and from. the case of Selle a6 d Another v. Association Motor 3oat.Company Limited. aM Others, (1968) E.A. 123 1 "that an appeal from 6 judge sittIng alone is by was of re4rial", and also from the English case of Sqtt v. Musipi (1959) 2 Q.B 429, "that an appeal from a judge sitting alone is by way of re-hearing"; there obviously being no difference between an appeal from a judge sitting alone and from \ a magistrate sitting alone, the directions or misdirections of a magistrate are not particularly material, unless they are in respect eed--ed of evidence dependant on the credibility of a witness which is determined by I. and from the observation of his demeanour. It is therefore necessary fon this Court to examine and itself evaluate the evidence! As noted, according to independant witneSses, the seventh accused was immediately identified by the oompainant as one of those, actually the leade of the gang, who robbed him! The magistrate's finding that the seventh accused Participated in the robbery is fully supported by the evidence and no coult would be justified in interfering with it ! .$.s 3/ . 04 3. ..• With regord to the six other acoused as noted, they were not identified by the complainant until they were pointed out to him by the seventh accused, although there is evidence of a police constable that some medicines were found in their possession, these medicines were not specifically identified by the complainant as his. In the oircumstance, I agree with learned State attorney that the conviotiona of the bix other accused cannot be sustained. The apeal of the second accused., who is the appellant Bernard a/c Nkunja, is accordingly allowed, his conviction which as noted, is supported by the Republic, is quashed and the sentence imposed thereon is set aside It be is not otherwise lawfully detained in custody, he is to be released fGrthwith. With regard to the five other accused who have not appealed, acting in the Court's power in revision, I quash their convictions which, as noted, are also not supported by the Republic and set aside the sentence imposed on them. If they are not otherwise lawfully detained in custody, they are to be released flrthwith. With regard to the seventh accused whose conviction haw been upheld, the magistrate was Meea- not satisfied that he stole any money belonging to the complainant. even so, although the value of the medicines stolen did not exceed Shs. lOO/ and the seventh accused was a first offender the magistrate found that there were no special ciroumstc noes empowering a court to award loss than the prescribed minimum sentence, which he therefore imposed. However, with respect, I d.c not agrees Bearing in mind the odium with which witch-doctors are held and the fact that the seventh accused is a local TANU chairman and thnefore may well have acted over- zealously what he considered to be the functions of his off loop I consider that such factors constitute special circumstances enabling a court for to award either ten strokes corporal punishment or imprisonment for such term as the court considered appropriate. In te all the oiroumsatnces, 1 consider that the time already spent by the seventh accused, who was convicted on the 23rd of June last year, thus having served more than nine months in eu:tody, which allowing for remission for good conduct, is equivalent to a sentence of imprisonment for close on fourteen months, is sufficient to meet the justice of the case. The sentence imposed upon him is accordingly reduced to such term as will result in his immediate discharge. To that extent 'his appeal is allowed and in all other rspeots is dismissed. Delivered in court at Dar es Salaam this 2nd day of April, 1971- (PHILIP BIRON) JTJDOB.