19730615 TZHC Arusha2

IN THE HIGH COURT OF TALZ.PJIA AT AIJJSHA APPELLATE JhISDICTION HIGH COURT CRIMINAL APPEAL NC4 AD 415/72 ORIGINAL CRIMINAL CASE N014/72 OF THE DISTRICT COURT OF MEULU DISTRICT AT MBUIU Before L.J.A. Mwamasika, Esq.., Resident Magistrate ALOYS MAUASHI • (2nd Accused ) .APELANT NEEMA .AKUNAAY __ (3rd Accused) . JuLI9:i__j versus (I sALPAHf THE ..... ............... RESPOI\1 DENT CHkRGE: Burglary and roboery with violence contrary to sections 294(1) and 2e6 of the Penal Code. ) Makawe\, J. These..two appellants were chaiged and ponvictd • together with a third peron, BALTRAZAR MEKIOR, Who !has not a pealedi. They were found guilty of burg1ry !and robery and each was sentenced to a suhstantive terin oflO years. ring the night of 21st/22nd November, 1971 at Kilietebo in Mbulu District some marauders broke into theh.ocum—dwellnghoue of P....l ELIPHATA MWANJI • after puthping gi.n bullets into the dodr. They forcefully relievedP..W..l and his sen, P. ..5, of 1,218/= End other property.L i A light was on and, according to both P.'7.1 and P. the present second appellant., W3EMA AKD1AAY, the third;! accused at the trial, had been to shop the T prevous afternoon. Later.M±kior id.the ;poiicet.o1, :hcketfrom which hetook out two gunsarid several ..rouna of arrmunition. This ws testified to by not onlythe police but also by PJv.5 a civilar who merely • happened to be around. According to the oport by a b1listic eoe't those 'uns we:o the same :ones which were used t4;3crpetrate the crimes at P.V.l's place. I err unhappy about the conviction of the first ape11ant, ALOYS NARTJASHI. After the polibe had been tipped th.t 'some peopl with guns were hiding in his house they went thither and searched it. They found no people hiding, and no guns. According to F.V.2 P.C. JULIUS two gowns and a blanket, inter alia, were found in the house. Julius told the txisl court that Maruashi keit on changing his sto y as to where he ot the blanket and the gowns fror. Once he said he bought the gowns and blanket at Karatu and then he shifted ground and asserted that he had purchased the E:wns at Arusha and the blanket at Moshi. •3ut this same!witness also told the court "2nd accused did not tell 6e where he bought them'.'. This contradiction was not taken into account in the trial court's udgrrent. Had it been, the learned Resident agitrate migit well have had doubts about the police officer's truthfulness. But thrt is not all. • •.. . . /; -2- The description of the things allegedly found in Maruashi's house does not quite tally with the descriptions given by P.i.5 and his father. Father says the clothes stolen were two pieces of dress material, "graen with spots",, and's towel. Son says the dress material was 'to', apparently 2, pairs, each four yards long and th.'t they were "of the same type with small flowers and red, white and blue colours." Fnrther, in court E.V,l identified as among his stolen things "a towlhandkerohief in a form of blanket". I am not sure what this means and do not know if this could be the same as the "one towel" P,W.l had earlier on said was stolen from his promises. Maruashi told the court of trial that when the police found two gowns and a child's blanket in his house he told them that he had bought the things at TMoshi. I do not feel certain that this appellant was found with anything sstfsfactorily identified as being among the things allegedly stolen in this case. There is no evidence connecting Maruashi with the guns which were recovered from the bush. I am thus repectifully unable to agree with Mr. D' Souza, learned State Attorney, that ) IJaruashi's conviction was sound. Accordingly I allow his appeal. I quash his conviction and st aside the sentence imposed as I do also the compensation order as far as it relates to him. If Aloys Lffaruashiis not in custody for some other lawful reason he should forth- with be released, rlthough at the close of the rosecut ion case the second appellant indicated that he. would make a sworn siatemett,when his turn came he contented hims]f with saying "I was found with nothing and thre is no reason for me to swear or talk about (sic). That is all" ? The esse against Akunsay is different. Although admittedly he was not found with anything incr•i mating, both P...l and P.W. 5 said thcy had seen him at the shop earlier in th afternoon of the ear. a d , duet loafing around. The prosecution witnesses were candid enough not to claim that thei had seen the other accused persons before. I believe the appellant Akunaay had been to W the shop before as allee and that he was correctly identified as one of the three persons who actually eritercd the house and committed the robbery while other members of the gang were standing guard outside. I accordingly dismiss Akunaay' s appeal. Crime is almost the middle name of ItE:IA .AKTJMAAY. He has seven previous convictions including breaking and robbery and for this reason I think it wa.s not judicious to punish him the ame wa as the other two accused were.. I would have enhanced the sentence had the trial court's record been fuller. According to the record "Accused (Akunaay" has 7 previous convictions. Mostly of house breaking and stealing. (Prison re:ort read over to accused),",and to this the appellant said "It is true I was convicted of robbery and served for 10 years with 10 strokes. I have about 7 previous convictions. The rest is false". In this context it must be assumed that although the accused was admitting to having seven previou convictions he was deiiing that they were "mostly of house breaking and stealing." As the record of previous convicticas was not produced at the trial and becsuse the allegid previous convictions were not s p ecifically put to the a:pellant for him to admit, for all ae know all the other previous ccnvictions might be irrelevant so there seems to be no particular reason of aunishing kunaai any differently from Baltazar Merkior who has two previous convictions for robbery and r' -P ,i-y, r,'1 cy'r er T }i1 1 1hrfnrp not -3- disturb the appellant's sentence. Records of previous convictions should be produced and allowed to form part of the record even where accused persons admit the previous COflVlCtlOi1S. The inclusion of such records enables an appellate court to assess the propriety of a sentence because from such reords the appellate court con see not only the number of times an accused person was cnvictd but also the span of his criminal career, the frequency with which he resorted to crime and the extent to which, he has hitherto paid for his anti—people escapades. Delivered in Court at Arusha this 15th day of June,1:973 Appellants present. D'Souza for the Republic. (L. M. iIAKA\iE) JUDGE It