19741206 TZHC Arusha3

juz,ry • IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIG1- COURT CRIMINAL APPEAL NO0 185 OF 1974 ORIGINAL CFIMINAL ChSE NO0 35 OF 1974 OF THE DSTICT COURT OF LUSHOTO DISTRICT AT LUSHOTO Before M0M Semboja - ------- ------------- District Magistrate ALl IILUA -------.--.-- ------------- APPELLANT (Original Accused) THE REPUBLIC ------------------------------ versus RESPONDENT (Original Prosecutor) • J U D G M E N T Jonathan, Ja The appellant was convicted of robbery, c/ss0 285 and 286 of.the Penal Code0 The evidence was brief0 There is no dispute that the complainant was on the mateçial night way-l:id by someoie and robbed of shs0 140/-. He alleged that the appella after asking where he was coming from beat him on the head with a sticT thereby dropping him to the ground0 While on the ground the appellant then robbed him of the money whih was in the pocket of his shirt0 He was unconsciouS for sometime and upon reqaining consciousness he called at the house of POW 2 This witness confirrnd the complainant gave him the name of the culprit as tht of the appellant. The appellant in an unsworn statement denied the offence and claimed that he would not visit to the village where the offence was committed during the night and that he used to go there on the market day only. • The learned district magistrate relying on the evidence of the complainant that he had recognized the voice to be that of the appellant, rejected the defence and convicted0 The appellant and the complainant lived in neighbouring villages, but there is othewise no evidence of familiarity ]etween them0 But even accepting that the complainant was familiar with his voice, I would not, with respect, consider such identification sufficient for a conviction. The culprit had every reason to avoid being identified and might even have attempted to imitate the 'oice of somebody else. The appellant was not arrested till after a month, and it would appear that even the police were hesistant to proceed on this evidence of identification0 The appeal is allow'd and it is ordered that the appellant be released from custody if he is not othêrwis lawfully held. Delivered in open court at Arusha this 6th day of December, 1974 P.M. JONTHAU J U D G E /Kim athi