19750208 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION - HIGH COURT CRIMINAL APPEAL NO0 16 OF 1974 ORIGINAL CRIMINAL CASE NO.659 OF 1971 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA Before: E.A, Mwesiumo Esq. • • • , • . Senior Resident MagistratL SONGORO NGALYAO • 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Appellant Versus THE REPUBLIC. 0 0 0 0 0 0 0 0 0 , , 0 0 0 , .. 0Respondent Charge: Robbery with violence, contrary to section 285 and 286 of the Penal Code Cap, 16 Vol0I of the laws. I J U D G M E N T MNZAVAS J. The appellant and two other people were charged with and convicted of robbery with violence c/ss 285 and 286 of the Penal Code and each sentenced to 7 years imprisonment. r - One of the accused(2nd accused in the lower court) jumped bail and is still at large. The other accused (3rd accused in the lower court) has not appealed. The following was the evidence that led to the conviction of the appellant and the other two people: On the night 15th August 1971 one, Mkochele s/o Magwaya (PW1) had his house burgled. He and his daughter (PW were subjected to violence.and had their property and shs. 3001= cash stolen.. The same night the complainant ) hleeding profusely from panga-cut wounds9 managed to walk to his cell-leader (PW3) and reported what had happened to him0 He related to the cell-leader tht six robbers had attacked him and his daughter and had stolen their property. He menaoned the appellant and the two other people as among the six robbers. He could not identify the remaining three people. The matter was reported to the police and the three people identified by the complainant were eventually arrested and charged with robbery In support of the conviction the learned state attorney argued that the circumstancos were such that ±he complainant could not have been mistaken in his identification of the appellant and the other two people. With respect I tend to agree with the Republic's argument. There was undisputed evidence that the appellant and the other two people were all well known to the complainant and his daughter (PW2) prior to the incident. There was log-fire in the house when the accused persons entered-the house, tied the complainant and his daughter and started attacking them. This clearly shows that the accused persons. were so close to the victims that they could not have failed to identify them through the burning log-fire. That the complainant and his daughter did not say that they identified all the six robbers but only said that they identified the three accusedtends to show that they were not mistaken in their identification of the accused persons. And what is more there is evidence that all the accuseds jumped bail while the case was still going on in the lower court. Indeed as I have already mentioned, one .of them is still at large. This act ci a . a . e o • e . . 12 . . . . . . by the appellant and his co—accuseds was certainly not consistent with innocence If anything the jumping of bail by the accuseds tended to • confirm complainant's evidence and that of her daughter that the accused persons were among the six people who robbed them an the material 'night. Oh the evidence the learned Senior Resident Magistrate (as he then was) could not have come' to any other conclusion but that of guilty as charged. The sntence of 7 years imprisonment imposed on each accused is the statutory minimum and as such this court cannot interfere. In the event this appeal is dismissed in its entirety. DODOMA / N.S. MNZA7k z 8/2/75 JUDE-- Appellant - Absent and unrepresented. Mbilinyi - for the Republic. -j