19740729 TZHC Mwanza

IN THE HIGH COURT F TANZANIA AT MWANZA. APPELLATE JURISDICTION 'HIGH COURT CRIMINAL APPEAL NO0' 6'OF 1972 OPIGINAL CRININAL CiSE NO0 181 000F 1971 OF THE DISTRICT COURT O GEIT1- DISTRICT AT 0 000GCITA B1FORE A. TEGAMAISHO Esq0', 0 0 0 0 DISTRICT MAGISTRATE SYLIVETER MBULI & Two others0 000000 00000000 O APPELLANTS (Original Aocused) versis THE REPUBLIC 0 0000000000000 000000000000000000000000000RESPONDENT ) (Original Prosecutor) OoO- CHARGE: Röbbéry with vio1eñce'c/ss 285 and 286 f'the Peral.Code r Cap0 16 of the Laws 0 JUDGMENT In thiJs'àppeal Slvestêr MbulI is referred to asthe first appellant, Mathias Mbuli.as the second appellant.and Gregory Mbuli as the third appellant0 In the District Court they were charged as the 1st, 3rd and 7th accused respectively together with five other persons who were acquitted at th€ir trial The three appe&s are consolidated0 The three appellants were convicted of robbery with violence contrary to sections 285 and 286 of the Penal Code. It was alleged in the charge that the three appellants together with other persons on the night of 8th/9th February, 1971 at Kasamwa Ginnery, Geita District, JO] ntly robbed one Gaudence Ngaiza of assorted cloth materials valued at Shs. 5,000/- Tne only issue in this appeal wns the identification of the appellants as part of the gang who comminitted the robbery0 The learned kriai magistrate in a well reasoned judgment accepted the evidence of the complainant P0W.1) and that of the complainant's son (P.W.8) as well as the evidence of prosecution witnesses Nos. 2 and 3 who all testified that they identified the appellants as havihj been pat of the •gng Which robb'd the coYnplaiñant. He therefore held that the apeiiant!: ~ werC proprly identified and convicted them 'of the offence with which they were charged. The learned Senior State Attorney who appeared for the Republic supported the conrictions. All the three .../2 -2- All the three appellants both in their memoranda of appeal and in Court at the hearing of this appeal questioned why none of the witnesses mentioned their names to the police after the rob- bery or to those who responded to the alarm if they were recognised as part of the gang of robbers0 They asserted that there was much conflict in the evidence of the four prosecution witnesses and requested the Court to scrutinise the evidence of those witnesses0 The 1st and 3rd appellants further stated that,on the day after the robbery the two of them went to the complainant's shop to wish him well and found a,group of people there but P.W.8, who was also present, never pointed them out to the people who were gathered there as . among those who committed.the robbery0 • The complairant in his evidence testified that on the night of robbery there was a dim light coming from a hurricane lamp in his room and at about 1.30 a.m., the door to his shop was broken by a gang of robbers0 Three : pgpple got into his room and he recog- nised them as the three appellants0 They assaulted him and he became urconscious.. The complainant's son a child of 13 yeas,.stated that he was sleeping in the neighbouring room in the same house and at the time of robbery he was taken outside the house by the 1st appellant who threatened to kill him if he raised an alarm 0 He knew this appellant very well and he recog- nised him by the light from the lamp which was in the room and also by the moonlight when he was taken outside0 When he was woken up by the noise he saw the three appellants get in his father's room and he heard them assaulting him0-,; . H POW.2 told the Court that he was accompanied by P.W.3 when they heard a big bang at the complainant's shop0 They hurried towards that house but they'.Wre'prvented from advancing further as there were two people outside the shop throwing stones at them0 As there was moonlight he recognised the first appell3nt as one of the two people who thew stones at them0 POWO3 stated that he recognised the 1st and 3rd appellant outside the .shop due to the moonlight0 He saw the 1st appellent take P.W08 out of the house •;and he heard him threaten .tokill him if he shouted. • ... All the four., witnesses knew the appellants well before the •-:nightc of robbery and as there was light in thecomplainant's room he had the opportunity of identifying his assailants, without difficulty as none of them had a hood on. Similarly P.i.8 had ample opportunity to recognise the person who took him from his bedropm to the open where there was moonlight. He certainly could not have mistaken .theideritity of that person whom he knew well prior to that.date0 Both POWO2 and P.W.3 who knew the appellants also identified the 1st and 3rd appell-ants as there was moonlight. - In my view the fact that neither the complainant nor the other three witnesses mentioned the names of the appellants to the police does not make their identification of the appellant questionable. This is more so because it was another. person who reported the robbery to - h -Pplice 4nd not one of these witnesses. I am satis- fied that the tril magi2strate was fully justified in coming to a • finding that tb appellants were properly identified as part; of the gang; who robbed the complainant. The appellants were therefore • .. properly convicted and as such I would dismiss their appeals against convictions. Since the sentence passed was the minimum, the appeal against senience has, no meri-t. • Delivered at Mwanza this 29th day of July, 1974. wanyika for the Republic. RU.\ B. a an - Ael'lants 'absent Uhrepresented. JUDGE