19741203 TZHC Dar es Salaam1

P1 IN THE HIGH COURT OF TANZANIA AT MWANZA CRIMINAL APPEAL NO. 197 OF 1974 Original Criin.ina]. Case No. 124 of 1973 of the District Court of Geita District at Geita before F.F. Bikongoro, Esq., District Ngistrate KWILEKA MAGANGA . . . ................ . . . . . . . . APPELLANT versus THE REPUBLIC ...................... . . ..... . RESPONDENT JUDGMENT SAIDI, C.J. In this case the appellant was convicted of robbery with viOlence c/ss 285 and 265 of the Penal Code and was sentenced to 7 years imprisonment. He is appealing against both conviction and sentence. It was alleged by the prosecution that the house of Tausi bt. Saidi, P.W.5, was broken into in the night of 29th August, 1972 by a gang of people who dug a hole under the wall. Tausi who was then sleeping alone in thehouse' was violently awaken, thrown down from her bed and severely attacked by these people as a result of which she was treated in hospital for 2 weeks. The time she was attacked she shouted for help but no one turned up to help her. The gang stole a1in6st all of her àlOthest and other articles including a gràmaphone all valued at shs.638/=. It does not appear that she Was in a position to recognise the robbers. The house of the appellant was searched on 13th September, 1972 about a month later following the complaint of Athumani Juma P.W.6,' whose house was broken into and clothes as well as other articles stolen and a bundle of clothes'wa found in a basket. The appellant - told-a/C Manje, P.W.7, that he had bought some of the clothes from different shops while several of the lady's dresses belonged to -.'.. • • his wife. Ri Tausi identified 3 articles one bedsheet, one blanket . .', •. . .. and 2 paIrs of khanga.— as part of her stolen clothes while Athumani jdentifjed one blanket as part of his stolen clothes. - * The appellant had¼ asked the court to call his wife and •• :- •*; .• •. I father as his witnesses to confirm that he had bought some ofthe clothes and that some of them belonged to his wife. The learned trial magistrate rejected the applicant's application relying On the evidence of the investigating officer who said the appellant had not nrried yet and his own view that the appellant was too young to be a married person. With respect the learned trial magistrate was wrong in doing so as the appellant's explanation of the origin of his ownershIp having been disclosed from the beginning should •1 2 . not have been thrown out just.1ke that without rebutting evidence. See Mwihabi Chinyele and another R.. t II T0L.R0 128. It must be noted that the appe1l.an hd aisOotold BZun.arida. P O W,2, that the clothes belonged to his wife. This was some days before his hiuse was searched0 Again in the charge sheet the appellant is shown to be 28 years old. It cannot. therefore be said that he was too young to marry. In the face of the disputed ownerthip Of; the articles claimed to be stolen it cannot be said that the 4 articles mentioned were identified beyond reasonable doubt as the property of the complainants. As the appellant has been in jail for over 2 years I do not feel that it would be just to order a retrial. I wish also to comment on the manner the trial was conducted. The charge relates to one offence of robbery but the evidence combines two offences committed at different times at different places - robbery in ti ie house of Bi Tausi and house breaking and stealing in the house of Athumani. Two sentences were imposed although there was no 2nd count in the charge. This is a serious error which should be avoided. In the r'esult the appeal succeeds0 The conviction is quashed, the sentences are set aside and it is ordered that the appellant be set free forthwith unless lawfully held in other connection. Delivered in Court at Dar es Salaam this 5rc1 day of, December, 1974- m (A. Saidi) ' CHIEF JUSTICE 4