19730105 TZHC Arusha5

! 101 1 6 OURT O' AT ARUSHA O APPELLATE JURISDICTION0 HIGH COURT CRIMINAL APPEAL NO... 00000 383 .,0 00 of 1g 72 123 ORIGINAL CRIMINAL CSE NO...000.,. 66000 of 19.000 72 OF THE DISTRICT COURT OP.... LUSH0O .00OO.,OPI8TRICT ATOOOOLUSHO t 0 0 0 0 S 0 5 Before... '? District • Eeq.....0.0 0 0..0....Magistrate. Saidj s/o Oman • • •# I I • • * ••••••p • • • a • • • • • 000 . a .Appellants Ramadhani 8/0 Mohamed. (original accuseds). VI'S. THE REPUBLIC • • , 0 , .Reepondent. JUDGMENT Bramble, J. The two appellants, Saidi s/o Omari and Ramadheni s/o Mohamed, were convicted of Robbery with Violence c/as 285 and 286 t the Penal Code and sentenced to four yrs imprisonment. These f are appeals against convictioia and sentence. The complainant alleged that at about 9.00p.m, on the 11th June, he was returning home when he was surpi'sed by the second appellant, who jumped from the bush and held him by his throat 1 The first appellant then came up and held his legs. They searched his pockets and robbed him of shs. 216/—. The witnesse had gone out that day to buy a cow and had told this to the first appellant who had piomised to assist him in obteining one but they did not succeed, After the incident the complainant went to a. house about 500 yards away where he called the name of the second appellant as one of his attackers; he said that he would give the name of the other party the following day. The complainant's reason f ortnaming the first appellant at the earliest opportunity was that t e latter's mother was present at the house of P.W3 and that he feared that he rou1d be attacked again when the mother told this appellant. P,W3 and P.111.4 said that neither the first appellant's mother nor an.yof his reativee was present when the report was made and have established th t the witness was not telling the truth and so cast grave doubts a fl o wte st appell an t committed the offence. The €rlat thait±'€i did not direct his mind to this uritk{ith when he held that:- The complainant failed to reveal the name of the first accused in fear of being killed by him. I don't think this was an e unreasonable excuse since he had a long way to go to his home. The non— direction is likely to catse an injustice and I allow th@ apea1 of the first appellant and Quash the conviction and sentence As to the second. appellant he was known to the complainant before and he called his name at first opportunity. The appellant said that on the day in Question he was at home nursing her sick child and at about 9.00p.m. while on his way to his home of his second wife, he was told that he was accused of robbing the complainant A witness for the first appellant swore that the second appellant was at his bar from l.00p.m. to 7p.m. and was present when the complainant passed there. Both of this appellant's witnesses confirmed that he had been at the bar and so his attempted alibi fell to the ground. The appellant himself admitted that he was on the road at about the same time the incident was alleed to have occured and this is c.rroboation of the complainant's story. There was no defence to the charge and I uphold the co viction. The offence comes under the Minimum Sentences Pct and the least term that could be imposed was seven yrs imprisonment. By passing a sentence of four years the trial magistrate misderected himseld in law. Since this is an appeal against sentence I w ill ~ aside the sentence and impose a sentence of seven yersimrpisonment. Delivered in court at Arusha the 5th day of January, 1973 0 Arusha, Sd /cerw. C .E, Bramble Judge, —