19720407 TZHC Dar es salaam

' I IN VIV HIGH COUkP OF TUZMiIA i4LtM1 UZDN HIGH COURT OIMINAL AFFAL N0.636 O 197 637 ol97 IOINA CR1 11, .S1?JQ.99 OF 1. (of the Ditr jot Court of Moroor iStr.Ct at Moogoz'o Before: D.8. Meela Rogi . g fleaident ?4agitatO). 3/0 1Dnr1 ..............•..............,I 4PLLIN (Original ccueed) 2t1 I,1II RP1JBiIC • i.a a.... a... ass..i•.. e, ass fiSPONDEN (original Prosecuto) MK4190 1 iW. J. - The three appellants in this case were ohared a4d ocavioted by the 14orogoro District Court of r:obbery with vio1eico c/a 286 of the Penal Code. Consequent to sach oomiictlonaoh accused person as sentenced to two yesrat impri a4 eonment e tw nty four strokes: f punishment in terrn of the I1jnimtni Sentencan Act 1963 now repcaled and replaced. Their appoalG to this Court relate both to conviction as well ac eentence, none of the accused appcared before thiCourt each bvin expcesed a deeie not to be precent at the hearing of the appeai The victim of thia heinous orine is one !cbika ftrokomvia (P.2) a reidont of Ttmi Sinai 1stete. The let and 2nd accused are also residents of T.u.ngi 8ja1 estate, both having been born and grown 4p there, Only the third accused appears according to the evidence t be a new-ccrnsr to the locality having just arrived in the village in 1pril 1971. Thus the three accused persona are persona1lyknOWn tS Myokomwa, On 23*d MaY 1911 Nyokomwa at about 7.30 p.m* was returning home from A shop in the village, whe, three persons ambushed. him. They attacked him with a knife and a club, and having releved him of all his 1 olothing, left him by the wa.y-'side stark nakod, and seriously in1ixred. Myokomwa was able to cIontity . his aesaillants as the three accused personso The let ecusod was armed with a knife, the 2nd accused had a club and the third accused had no weapon at •11. It would, appear that the let and 2om 2nd accused used the weapons in thetr possession to inflict serious injuries on the person of 3 &yokomwa. While the third accused is credited with having restrained the other two accused from killing ?yokomwa, there can be.no doubt'aa to his active participation in the perpetration of this offencs The cake . for the prosecution ree,,,tad wholly on the evidence of the vIctim, 143rokomwa (PW.2). The appellants memoranda attack the agistrte for relying on yokomwa's ovdence and in parti0ula his identi4cation of the three accused persons. .1 have 1 carfulIy considered the evidence, in particular that part of 14yokomwa 4 s evidence regarding the identification of the three accused persons and I am satisfied that the learned Resident VLaictrate was right in accepting this evidence and acting on. it. Acooiding to the evidence there was bright moonlight and the complainant who knew all the accused very well was able to .s/ ideuttfy each one of them. It has not boon suggested by any of the aoced ptrone why the complainant ehold concoct a caee again then.. The leared. Rcident t1k3letrate after considering the defenoe, of each of the aco.eed and rejecting the dafencs in each caae, found each acced gi1ty of'the hoinoue offence of robbez7 With violence. With the utrnost repect, Z catot ftn anything to tmpnjn this finding of the tiul Conrt. 4PPellantl a ffiO orenda Mite no points of substanoe. and e, as is this appeal agafttat convictiOn, dienissedo rning next to the guetion of sentence, tbee can be no doubt that Och of the aceed person is a seasono& criminal, each having admitted to one or more ei,ioxe convictiona. The offence for which they were convicted in the preeent case invblved peeonal violence in which aangetous aapons were used.. In the oircwntauces I cannot ee that the eeritonoe imposed fuUy refleote the exiomity ant gravity of the offence peDpetrated.. I will accordingly et aside the sentence imposed in respect of each accused poron and Ibetit•ute tltereirnto the following sentences.. 1st .ocused shall serve a term of JoVan years 'imprisonment. - 2nd ccised shall serve ten years' imprisonment, and, 3rd cc ed..ahall serve eight years' imprisonment, Delivered in (ourt at )ar es Salaamj this of April,. 1972. 7/4:' d ay •.l(.14.Mwakasendo) !lNt 3U: V I' ,TS.