19741125 TZHC Dodoma1

rc4. IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.52 OF 1974 ORIGINAL CRIMINAL CASE NO.607 OF 1973 OF THE DISTRICT COURT OF tODOMA DISTRICT AT DODOMA Before C.U.S. Mwailunga Magistrate CLETS/0 MAZENGO .............. 0000000000000000000000000Appellant (Original Accused) Versus THE (Original Prosecutor) V. Charge: Robbery c/s 285 and 286 of the Penal Code. JUDGMENT MNZAVAS J6 The:athused was charged with and ôonvicted of robbery c/s 285 and 285 of the Penal Code and sentenced to the statu.tory minimum sentece of 7 years imprisonment. He is appealing against the conviction and the sentence0 On the night of 22/6/73 the complainant one, Mycra Kanthi.. (PW1) was going home from a cattle market. He was accompanied by three people - Mnyaniba, (PW2), Mwaluko (PW3) and Mgaliwa (PW4),. As they were on their way home two peopleerged. One of these two people attacked the complainant on his head with a stick. The complainant fell down unconscious0 As his companions were intervening the other man assaulted Mgalilwa (PW4) on his arm with a stick. The complainnt was robbed of his money shs. 250/ (and a newly bought shirt he was carrying), as he was lying on the ground0 unconscious. The two people immediately ran away. The complainant and his companions identified their assailants as one s Matei and Cley ?lazengo, the appellant. There was ample evidence ir support of the trial magistrates conclusion that it was the appellant and one, Matei, who attacked the complainant and Mgalilwa (PW4) on the material night 0 There was undisputed evidence that there was bright moon—light on the material night. There was evidence that the complainant and one of his companions were carrying torches and that they shorn their torches on their attackers. And tcrown it all there was undisputed evidence that the appellant and Matei are neighbous of the complainant and the other prosecution witnesses and that they were well known to the complainant and his companions before the incident. There was no suggetion, and the appellant gave none, that the complainant and the other three prosecution witness had reason to tell lies against the appellant. This being the position the question of mistaken identification of the appellant as one of the assailants did not arise. Incidentally Matei miraculously disappeared from the village and was still at large at the time the appellant was arrested. This appeal was only admitted for argument as to whether there was sufficient evidence in support of the charge of robbery. The evidence amply showed that it was Matei who attacked the complainant and fell him down. The evidence also showed that it was Matel who robbed the complainant of his money and shirt as he was lying on the ground helpless. The only direct evidence against the ........./2 - - appellant is that he assaulted Mgalilwa (PW4) as Mgalilwa was intervening the"fight" between Matei and the complainant. In his judgment the learned magistrate invoked the provisions of sectioh 22(c) of the Penal Code and found the appellant guilty as an aider and abettor of the offence of robbery and therefore guilty of the actual offence of robbery, The learned state attorney supported the trial magistratp's conclusion and supported the conviction With respect I tend to agree with the learned resident magistrates argument that the appellant aided and abetted the offence of robbery0 Section 22(as well as section 23 under which the conviction could also have been based) are very wide in their application0 There was, as I have already mentioned, eVidence that the appellant assaulted Mgalilwa .(PW4) as Mgalilwa was intervening between Matei and the complainant (P141). And if I may add, the appellant, like Mate!, took to his heels after the assault and robbery. On these facts the appellant was clearly guilty of robbery in the, same manner as Matei would have been had he been arrested and charged with the offence. I agxee with the Republic's view that this appeal should be dismissed in its entirety and i so order0 DODOMA N. . MNZAV 25/11/74 JUDGE Appellant - Absent and unrepresented. Alimwike for the Republic/Respo:-ident.