19740727 TZHC Mwanza

+k 44r ~ 2 IN THE HIGH COURT OF TANZANIA AT MWANZA " 1 APPELLATE JURISDICTION IIGH COURT CRIMINAL APPEAL NO.. 75 OF 1974 ORIGINAL CRIMINAL CASE NO 157.. OF 1973 OF THE DISRICT COURT OF MASWA DISTRICT AT MASWA BEFOE A. 'MOHANED Esq., .',.DISTRICT NAGISTRATE NGA NDAKI. •0000 •, 00g.... a. •'•. ooa OAPPELLANT • oo a. (Original Abcused) • .. versus THE REPUBLIC Soc 600 so RESPONDENT (Original Prosecutor) -OoO-- ' CHARGE . . . . '.bbex w.ithvioience c/SS 285 .& 286 ofthe Penal Code, Cap. 16, Vol.1 of the Laws. J U D G M E N T LUGAKINGIRP Ag.J The appellant was convicted of robbery with violence in the District Court of Naswa and sentenced to 7 yers' a imrisoriment. It was alleged that on 11th July, 1972 at about 4.00 a,m.,, at Kidugalo Growers society in Maswa District he did steal cash She. 13,153/40 1 an a shotgun and immediately. before the time of stealing used abtual violence on two persons in 'orde±', to facilitate the theft. The facts of this case are rather interesting. On the night ofthe crime 'P.W.3, a committee member of the society, had slept in the eqciety's offce where th cash was preserved. Outside there were two watchmen, P,W.4 who had a panga and POW.5 who. had a shotgun. At about. 3.00 a.m., P.'W .3 "heard cries outside. H.oke up and armed himself with a-hoe. Suddenly three people broke into the office in which he was. They knocked him on the head with a h'ammer and he fell down. They covered h face, tied his hands and legs and threw him 'into a dark room' where they locked him 'up. •He then: heard them break the safe and empty its contents before they left. They also 'fired some shots which to him sounded like exploding bombs. People gathered at the scene and untied him. He. told them he suspected one person because he did not answer the alarm. The':mo'b looked around and saw that: the appellant.wasabs'eat. They followed him at his.hOuse, which was-about three quarters of a mile from the scene, woke him 'up and arrested him. P SW.4 .,0/2 -2- . P.. W. 4 said as he was.gLiarding outside when he suddenly became aware of a torch light behind him 1. When he turned he saw people coming towards him in company with P.W.5 his fellow watchman. He took.to his.heels and recognised none. P.W.5 said he saw three people coming and started to throw stones at them. When the stones were finished he start'd to raise an alarm. Nevertheless, they grabbed him,. took his shotgun away and tied' his hands. One person was left gnarding him and the rest broke into the office. He then managed to run away to a iearby shop where he was untied. He did not recog- nise any of his assailants. The appellant testified that he was sleeping in his house with a guest when he was woken up by a ob . They asked him to put on the clothes he wore the previous day. They took him to the society's premises and told him he was a thief- otherwise he should have answered thoalarm. They "sentenced" him to a fine of Shs. 500/- and then delivered him to the police the follirig morning. The..entire case, if this was not a faked robbery, depends on the.evidencC of P.W03. Did he properly recognise the. robbers or any of them? In deciding this question the trial matrate held that P•.W.3 saw and recognised the appellant at the time of the robbery. He also held that the fact ; that the Cllant failed torëspond to theala'm sho"wea that he had aiilty con- science. With respect I cannot from:.the evidence accept this finding. First of all, P.W.3 ws allegedly beaten on the head with a hammer by the intruders and he fell dowil, pro- bably seeing stars as coune)forthe Republic put it. He was then blindfolded and thrown into a dark room where he was locked up. I do not think thesq were circumstances which could enable P.W.3 to recognise anybody or anything for that matter. Secondly, P.W.3 did not mention the ..a.p.pClIant when people arrived. He only suggested that the appellant could be one of the intruders as he had failed : to. answer the al'm Eren the following morning when a report waa:ma'd to P.W.2Iaolice officer, no persQn was mentioned although the appellant had alreadr be.en apprehended by the mob. It was only in court that P.W63.was able to decribe the attire Of the appellant after the same had been tendered in evidence by. P.W.2 and was there for him to see. This method of identification was crude and shabby. Had the trial Magistrate add±'essed himself properly to these.factors he should have held, as do, that the appellant was not properly identified. As. I have already pointed put, this could - have, been a faked robbery''.qnd the appellant was • picked up as a" scapegoat. Bven the Republic was unable to suppo±t •the conviction. . . . For these reasons I find that the'.'apellant was not properly convicted and I. quash he conviction and set aside the sentence 1 The ape1lant should be immediately released unless otherwise lawfully held . •" . Mwanza KLu g aka 27th July, 1974 .........• Ag. J1JDGE