19730414 TZHC Arusha

Ii\ T±E ill OH CJUiT OF TAr ZAJ IA AT AHUSHA • - APPELLATE JURISDICTIPL HId COURT CRTtIINAL APPEAL NO. 456 OF 19 0 'IGITATi CRIMINAL CASE P . 488 OF 1972 HE DISTEICT COLTiliT OF KILIMPJAO DISTRICT AT MOSHI • Lefoe W. I\Tathan, Esq , Distiict Taistrato. MOSSES s/o i c. S IL I L7 APPELLAMT -- (Original Accused) VEkiSUS TE REPtYThIC RE SF OP T (Original Prosecutor) ..CHAGE:Rdbbep with Violence d/ss 28 5-a 86-f the Penal Code. JUDGMENT 25 PL 1971 Bramble, J. This is an appeal against cinviction and sentence on a charge of robbery and violence. - The woole issue turned on a proper identification of the appelltit The facts not in dispute were that a bus stopped near an Agip Petrol Station... There were two men and a girl at the bus. stand.. . When the girl was entering the conductr came out. One of the rn-en cut the money bag from around tkia--conductor's neck, injured hishand and bbth theh ran awai. The conductor, F.W.l, said that it was the accused who cut the bag awa; and the other roan ran away with it. The driver of the bus said that it was the accused who ran with the bag. Jhile statements concerning the incident were being taken at the police station the appellant was brought in on the allegation that he had cut someone at Kalimani with a sword. It was then that P.W.4 pointed him out as the man who had injured the c-inductor. As to identificotion the conduc;or eaid that while he was in remand on a charge, a police officer called the appellant and showed h±m to the witness saping "this is the man who cut you on the hond". He also said that when he returned from the hospital he found the accused in the police station and that the girl, 2.i.4 had iP-entified him. His evidence of identification was of little DT no value.. He had not given a description to the police and he seemdd:to have relied on what P.vJ04 stated anP grave doubts must arise when he was asked to identify the appellant while they vvee in remand. Had he made any positive statement on the point at the police station there w;uld have been no need whatever for this. The cese rested, therefore, on the evidence of L.H.4. She said th.t shortly after writing her statement she saw the police with the accused and he had on the same clothes.. She hod been at the bus stop where the accused was for about half an hour and had spoken to him. There was moonlight. ,... -2-- The incicler4t was alleged to have taken place between .30 p.m. and 900 pim. b the witnesses4 A wo.e accurate assessment of time can be made from the fact thot the ieport wee made at .30 p.m. The appellant WEtS br.ught to the station under escort about 45 minutes after on achare of cut iing someone with a sWord. -the witness P.\7.4 did not give any description of the appellant whe'n the report was made. She saw the appellant with a sword hebhe:wes searched at the police statin and claimed .th.t he hd on same clothes as the person she had seen at the bus stand + Had a description ofthe aDpeJiant been given prviot1sly the evidence of identif1caibn krbuld have been stranger. i-sit was it appears-to me-tp leave much room for doubt • . and I.allow the appeal, qtthsh the conviction, set aside the sentence and order thct the appellant be immediately released unless otherwise lawfully detained. Delivered in Cou at Aiiha the 14th day of / April, 1973. /cwm • ( c. E. BRA.LE) - JUDc1E • Appellant. absent, unrepresented De Souza, State Attorneyfoi the Republic