hassan abdallah vs republic 1975 tzhc 3 27 november 1975

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 57 O F V1975 (Cf. Misc, Cr. C. 80/75) v&. -*ft ‘‘ (Original Criminal Case No, 498 of 1973 of the District Court of Kigoma - Before S. J c Kanyama, Resident Magistrate) HASSAN ABDALLAH ............. ...... APPELLANT (Original Accused) versus ^ THE REPUBLIC ...................................... RESPONDENT (Original Prosecutor) ?M fc* CHARGE: 1st c o u n t : Robbery with violence c/s 285 and 286 of the Penal Code Cap* 16 Vol.I of the Law-s* 3rd & 2nd c o u n t : Robbery, c/s 285 and 286 of the Penal Code Cap. 16 Vol.I of the Laws. F •m f ' ' ? 'it * •. -v*■ Of:- •' TV ‘ .... - ' 11 .. 4 * • ‘Nl- ■ •-• iii:? i-n. ‘• J U D G M E N T . ^ i ,■ -------- r-------- i-r.K-i*''* ■■i• .v f ; J d vni "• I1' - •'** . SISVA, ••...i i. AG.^-J. .i .fc.i■.M . * -v- ’• iV • > vai >•" n JV • ’■V > 1 '"*•-'I.. '• f -The appellant was. convicted by the District Court, 'Kigoma, *•« r ii ' ' - v -i. ’ .r- - ■ on three counts of Robbery and .was -sentenced to seven »ridfea half years imprisonment on each ,qo.unt,; sentences1 toi iran :c:oncurrently« He is now appealing. i i>rv iw..■ >'*••• *r - ;:‘:7 " ’ * .Evjuience was led at :the -fcrial that ,on:the ;evening!of 21/6/73 at aboiib- 8.00 p.m. one EmmanuelT (P.W.,20 and one €ornel s/o Tresf&ri (P.W.3) entered a .shop .at Mwanga to buy,-a bo* of matches* According to. Emmanuel (P.W.,2) ;wh&, incidentally^ .is the complainant in count two, thereafter he and his companion*' Cornel, smarted to walk away^ The^ said...CLo^nel .was behind him, A V 'o^te"he,,Emmanuel, -heard a person, say.. "Mshenzi*?* .When he. turned b a c k s a w 'Cornel VJ r 1 /.A - lying on the ground and the appellant was/holding'him i-;.‘fe-.-l'Cornel, ..by the'neck. On seeing this Emmanuel went * back-i separate! ’theA. The appellant, however, .kicked him, i.e* Emmanuel^-and h& ffell -down. "‘At'thafstage a _group .of .people came, Emmanuel* tgat up^an&'Jfrlt the •‘■ -|v ' ■' 1' -: ■* I ' “ ' appellant in retaliation. The said grQyip-of ^peopld'1tken‘iturned Li J8 . 7 ;t:x ~ir ^ ' o n him,, i^e. Emmanuel, and began to assault,thim;/they fel?l him tt,-«• *r*r •• ,v.-/ ’* to. the ground and pressed him. Cornel came •to ..hi^s aid and thereafter . ’ <4 A* . * '*• ' If -t • ' * the two o^ them, i.e. Emmanuel, and Cornel, ran towards one K i nyongoli1s pombe club, while being pursued by the appellant and the group of people. The appellant and the group caught u p 7with Emmanuel and his companion and fell them down at the door o f ’the • . . ooo/2 pombe club. p0mbe club.. A woman who did not give evidence at the trial them pleaded with the assail^fiti fco spare Emmanuel and his eompanion. It seems they listened whereupon Emmanuel got up and fentered the club. He found another fight there which did not involve him. Thereafter, Emmanuel left, apparently, on his way home. It was at that time when he discovered that his shs.70/= were missing from his pockets. According to Cornel (P.W.3)^ the complainant in coufft one he and Emmanuel found the appellant in the shop where they had gor to buy a box of matches and they left him there. After Cornel and his companion had walked for about sixteen paces the appellant followed them and stood besides him, i.e. Cornel. The appellant asked, him where he was going and before he a«nwered the appellant hit him with his head on the-mouth and he .fell down. He, the L ri.. appellant, then held his, i.e. C o r n e l 's shirt, at the back. On seeing this Emmanuel came to his aid but the appellant, however started to ran. Emmanuel got hold of him. Cornel got up and went to assist his companion, Emmanuel. However, when he arrived at the scene he saw the appellant and five other persons whom he • .;,r p r '' could not identify attacking Emmanuel who was lying down. He, j. • f- Cornel, then picked up a stick and assaul*ted one of the assailants ' ’) • r n ■' 'i V ■ +. I •. 1 •T 01 with it. The appellant and the others tnen ran away. •• Emmanuel ,-t, •i — >jfv■ ' • r*•• r ‘ got up and the two of them, i.e. Cornel and- Emmanuel,' ran towards K i n y o n g o l i fs bar. The assailants, however," rah after them and got hold of him, i.e. Cornel. They lifted him and threw him down. 9 ne Edward Kalikenya came to his aid. The- assailant^ then turned to him, i.e. Edward, They knocked Edward down & n d v£oo)c away his watljh* Cornel got up and ran into the bar where," he met Emmanuel. ' ; *_•. ' rt’B ' s :•* ’• ' 'V •<“'•••• • i ff ' r . - . - j •• • , c . v l A f 1J Thereafter, on the” advice.-, of Emmanuel the two-of-them w>mt'-€© the Po.lice Station. r , PoW.4, Edward Belyinda,r testiiiedf that on 21/€/.73 at 8.00 p.m while he was outside K i n y o n g o l i fs bar he saw two persons coming from the direction of a shop: M One-- wasy infront of the o t h e r ; ' At once the person who was behind caught the.one who was infront arou the neck as if he was whispering to him. The persorrwho-*-was-" infront, then fell, down. .fAccording.,.to Edward he saw the two persons clearly bodause the pla*K2 at the scene was well lit by street lights. Eventually the ^ttacker left his victim helpless on the ground. Later the victim got up and picked up a stick with which he assaulted the attacker on the shoulder and stomach. According to Edward the attacker was the appellant. Thereafter, /3 the appellant the appellant got hold of the victim and pulled him inside the bar*. A f t e r ’’that the appellant turned to Edward and knocked his v r: p *•'-■ ri“ • •~h&rid against a wall* Another person came .and assisted the . . r . i •) ■ 1 r * .,:o , ^ • appellant is knocking his, E d w a r d 1s, hand against a wall* Other t 't " •- <i •*' Vs?-! - 1J “persdns came and rebuked the appellant for attacking Edward* By or- -Lv • - 1 : then the. appellant and his companion, {h ad already taken away a wrist •I. * watch frpm. Edward* {They then desisted, frony attacking Edward* The, mother of tjie .pppellant. promised, to recover the wrist watch for Edward but this, was never,, d«®,ne * . On 25/6/73 the appellant was arrested and subsequently charged. . i ; ,. In ?his ^efence^afc,the ;.;tri^l-the appellant said that on the material evening whil.,e;he waa^.&n^a/shop at Mwanga two persons*- one of them carrying a. gourd containing pombe, came and bought ••• ■r > • ?■" ' ■•:rr some cigarettes. Therea^t^er,.^ne^of them pushed him.* The. appellant '“’*J ’’“’V _;•* -- • • • pe*s'r?> ; r-askedjhim w h y he -fSuSfrecP hini ^w^'ereupdn the said' abused,him, bjt.(,. A ' f ' r :" ri " calling him "mpumbaVU” attd- other nasty words* After that.£he said * person challenged the* a-'ppellfemt to a fight* The;'.appellant left the .. shop' and went outside*'- Ht: lwfeTsl follfow'eb by the cfialleiigeip who then ,■ hit him hard with a fist;'*' The appellant f e l ^ ^ a i n and assaulted the challenger in retaliation* Ther’Challenger’s companion then > came-and joined -f o r c e s n falling-%he:A p p e l l a n t to the ground,* The appellant-managed to get up and took to his heels* He ran ^-t*? ..his hoijse but he was followedi:-by his attackers who continued to a s s a u l t ’him with sticks. Some elders, eventually, came to his aid.-- • -v* ' *-' ' the appellant pxpressed..a <4fes;ire. tp -call wi.tne-sses on. his behal: b u t for'some unknown reasons he was not accorded any, opportunity -r rp n l~t; 3 1 .' . •' *• . to do so by tfh?e trial court* • >r In his judgment the learned trial magistrate found that there was ’c o g e n t ’ evidence against the appellant on all three counts and proceeded to convict him. In his lengthy petition of appeal the appellant dwells on the contradictions in the Prosecution evidence and concludes that there was no sufficient evidence on which to base convictions on all the three counts.' He also complains that the trial m a g i s t r a l refused to entertain his application for defence witnesses. Indeed looking at the Prosecution evidence aJE a whole which I am entitled to do according”-to law it can be observed that there are some material conflicts which the" les&rtjed tr±^l\ magistrate does not appear to tiave considered. Indeed t^jye^Ts no dispute, as the trial magistrate himself also found, that there was a fight involving the appellant on one hand and Emmanuel (P*W„2) and Cornel (B.W.3) on the other hand on the m ^ e r i a l evening. However, there is not even a scintilla of evp^renee to show that the appellant is the person who took away the money from the pocked of Emmanuel and Cornel* As a matter of fact when cross examined by the appellant Emmanuel i is recorded to have said and I qoute, "I cannot tell who took the money." Further, at no istage in their testimony did Emmanuel or Cornel allege that'they felt someone^ let alofte-the appellant^ Search their pockets, where the money was. On the evidence on record chances are that the money, if at all there was really A. ..v f . any in the c o m p l a i n t ’s pockets, fell off in the courfce of the .j fracass whereby those involved kept on assaulting and felling r ♦ . one another to the ground. On my evaluation of the evidence it seems to me that what happened on the material ..evening was a free for all tfight. The,.actual cause of it islvTnot‘ k'nowri but I think I will not be oversteping the>bounds of propriety to suggest that "pombe drin)cingM must, have played a role as a catalyst to it, «, - '^;i(^ Turning to count three the complainant, Edward, testified that the ’appellant and his .companion.,tinned, to him snatched his ^ .V^ -J.-ii ■S. i J ^"* w a t c h ‘and knocked his hand g a i n s t the wall inside the bar* 0?.W,<3), hbweve**; said that Seward was knocked down . • •:jVtir ■-- and had his watch taken away from fiim outside the bar when he, ' Edwa^(3fL,‘Carae'-to'"his, i,e. Enfmanuel’s rescu&i* This contradiction notwithstandx^Jfcione of these two witnesses, Emmanuel and V ;+ •' ax.-* ..jEd,war$,r-specifically said that the wrist watch was snatched or j> ■> i- } r-ffw ''i •.i ! - — ' : •- •' yjtaken away by the appellant,*1' This is important because., it was not -established that the ethers' W h o ’'joined in the fight were sharing a common intention with' the appellant. All in all I am erici'ined to the view that the evidence adduced before tthe trial court w a s ‘riot sufficient to establish the > charges.as laid. This appeal; therefore, succeeds*in the event i the •convictions w h i c h ’are hot supported by the learned state* ,. a •. ‘ t J . / . ‘/ A ’ attorney are':quashed and the sentences are set aside* .=;The rt-t rappellant should'be^set at liberty unless he is otherwise helc] on other^lawful char g e d . It is ordered accordingly, ^ • , _ • ». - n|; • '' ‘v? t !■ ' ' J :1 ..a. •I C'- • • •• . .• ,,A t-.r.■• ?J.--ft <1■ r’ ur,}I>elivere<t 'in '-^bp'en ediiirt at Tabora this 27th Noyemb'eir,^ 1975, , ... ^ r r , u J -» p- ...... il Z •: > ^ ■ P> i > <■' • ' ^ ' ' ,r{ ■>.ac8S ■■■>* // ' l y - y - . ~E.: ' d I1 s i s y a , AG.rJUDGE,