19721006 TZHC Mwanza

U &cn U" IN THE I-IIGH COURT OF TANZANIA at LIwanza HIG-H COURT CRIMINAL APPEAL 110. 148 OF 1972 ORICIIUAL CRIMINAL CASE NO. 522 OF 1971 O'iIE DISTRICT COURT OF KIG-ONA DISTRICT AT KIGOfIA re C.G. NTLUGA, Esq., .........,. Resident Magistrate SAMUEL PEI[BE ) */fl)0A1BEL ALPHONSI)................,....,...Appellants ( EDTARD OBi.T I GEZA) / versus /7 THE REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent Charge: Robbery with violence c/s 285 and 286 of the Penal Code, JTIDG-EMENT EL-KINDY, J. - The appellants Saiwel Penbe, Abel Alphonce and Edward Obwigeza, the first, the second and the third appella- nts respectively were jointly charged with and convicted of robbery with violenc.e contrary to section 285 and 286 of the Penal Code. Each appellant was sentenced to irprisonmen.t for 24 months, and to suffer 24 strokes of the then corporal pui.isbnent. They also ordered to pay compensation to the complainant n the sun of Shs. 2001=. The complainant PW1, lived in Legeza Mwendo Street Kigona. Mwanga. On 24th August, 1971 at about 10 p.m. he was in Saba Saba Bar. He had with him a tape recorder, which he claimed to have bought for Shs. 500,=. At about 12.30 a,n, he left the bar carrying with him his tape recorder and Probably he was going to his house. However, on the way he stopped to help himself. As he was doing so "they" came from his back and the complainant alleged that the first appellant held him tightly by his back and that he was able to see him because he turned his face back- wards. He alleged that as he was resisting, the second and third appellants held him by his legs and fell him down. Whil.e on the ground, he alleged, the second appellant pulled away the tape recorder from him and he saw the second appellant and the third appellant together with Daudi Sekira and Rphae1 Alphonce who were co-accused but who were acquitted by the ti'il court, run away. He alleged that he held the first appellant but somehow the firCt appellant managed to slip away and also disappeared. He raised no alarm when this happened. He claimed that it was because theattack was very sudden. He also said that he was able to see their faces because there was light from a street lamp. He left and we.t to his house. He claimed that his house was near the place where he was robbed. Later on Jiowever, he went out of his house again and to the same lamp post in the hope of finding his watch which had dropped from his wrist. He alleged that he then net the five people including the appellants again and he claimed that he identified them as the people who had jointly robbed him of his tape recorder. The apoflants agreed that they were net by the complainant and that they werc questioned as to their names, but they denied that they had anything to do with robbery which took place before hand. The complainant furt1ar said tht he heard all the five people bozling that they had sucss'uIiy robbed him4 14, . . .. . . /2 But this part of his evidence is not in agreement with the W evidence of his wife (PW2) and Ha'runa (PW3). According to his wife she heard the five people arguing about the use of the tape recorder and that the first appellant claimed that he should have the use of it first because he was the one who held him by the throat, and that the s.ecord appellant told the group that the complainant was back at the spot, looking for his tape recorder. Similar evidence was given by Haruna The learned magistrate was satisfied that the complainant had identified the three appellants but not the other two people he acquitted as participants in the robbery. He also relied on the evidence of the complainant's wife and that of Haruna and deemed it corroborative of the evidence of the complainant. The defences were rejec-ted'' The three appellants maintained that they had nothing to do with robbery and that the complainant mis-took then for the people who robbed him. They deiiied that 'they had talked anything as incriminatory as the three prosecution witnesses alleged in their evidence when they were by the electri9. lamp post and where the complainant had net them. The learned7Serbr State Attorney was of the view that the evidence against the appellants was not really reliable. He said that having regard of the fact that no alarm was raised and although the incident took place near the bar nobody else heard of it. In his view it was unlikely that the complainant was in a' position to identify his robbers. He submitted that the evidence of the wife and Haruna was most unlikely, as it is unlikely that the appellants, if they had beo:a the ones who robbed, would have remained, or gone back to the place they had committed the offence. He thought that most likely the evidence related to the conversation taking place amongst the five suspects was a fabrication. The evidence against the appellants is very weak. The complainant had been in the bar and most probably he has been drinking, from the time he arrived at 10 p.m. to the time he left the bar at 12.30 a.n. Therefore, it is very likely that he was under a strong influence of liquor. If so then his ability to see is reduced considerably. Secondly, if the complainant told the truth that the attackers came from his back si.ddenly and that he was helping hiuslef, inspite of the presence of light from the electrical bulb of the ituap post, it is unlike -lyfthat, in the circumstances, he was in a position to see and to identf each and every one of those who attacked him. The fact that the magistrate acquitted the other two, implied that he wasua't certain that the complainant was in a position to identify them well. If he had been struggling with one of then, it is unlikely that he would have been able to see the other participa- nts as clearly as he claimed. Therefore the evidence left reasonable doubt as to whether the complainant identified his attackers. As for the evidence o lt conversation I would respecty agree with the learnedèñior State Attorney that it ic most unlikely that the appe1lant woul(_-1. have gone I a-ckto the scene after committing' an offence well haow.ing that tiecomulainant and probably other night he looking for then. .. .1. think that- the evidence is very fanciful, and it is not the sot o' eiCnde which can be easily accepted. Per these reas.ons,." t:herafore,. I f±mCl that it would be most unsafe to up-hold the o,biic±iOns 'of thee appellants. As a result the convictions are qucehédiadthe.. sentence and.rders imposed set aside. The, appellants. "should he released forthwith unless they are held on some ot -hër'Ilawful purpose. Delivered in court on the 6th clay of 0ctber, 1972: 6t1i bctober, 1972. (i!(EL-KIF'DY) JUDGE