19750310 TZHC Dodoma

Oi - IN THE HIGH COURT OF TANZANIA ,Vzrk Coz.i4 AT ODODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO, 34 OF 1974 V ORIGINAL CRIMINAL CASE N00,480 OF 1971 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA BEFORE E.A. MWESIUMOO 0 OSENIOR RESIDENT MAGISTRATE DOfATI PAULOO • OAPPELLANT versus THE REPUBLICO 0 0 0 0 0 ORESPONDENT O Charge: Robbery with violence c/ss 285 and 286 of the Penal Code, J U D G E M E N T MNZAVAS - J. The appellant Donati s/o Paul was charçed with and convicted of robbery with violence c/ss 285 and 28E of the Penal Code and sentenced to 8 years imprisonment 0 He is appe.ling against both the conviction and the sentence. On 1/10/71 at night one, Mntundu s/o Hçanga (PW1), the complainant, had his home-stead burgled6 He was suljected to violence and had his 38 head of cattle and 32 goats stolen. After the bandits had left with the animals the complainant raised an alarm and neighbours went to the scene and helped in tracking down the thieves. Of the 38 head of cattle stolen 23 were recovered - having been left behind in the bush, but the thieves could not be traced. The.following morning the complainant reported what had happened to Dodoma police station and mentioned the appellant as one of the robbers. On 4/10/71 the police, in the company of the complainant, proceeded. to appellant's house and arresed him. He was eventually charged with the offence of robbery with violence. In his memorandum of appeal he argues that the complainant (PW1) and his wife (PW3) deliberately told lies to the court when they said that they had recognised him as one of the robers on the material night0 V The learned state attorney submitted that the two witnesses (PW1 and PW3) amply identified the accused as one o:f the people who robbed the complainant of his cattle and goats on the said night and inyited, the court to dismiss the appeal. As I remarked in my minute when admitting the appeal to hearing, the evidence leading to identification of the accused as one of the robbers justified the convjtion, Amp ./2 There was log-fire burning in complainant's house when he and his wife (PW3) were assaulted and had their arms tied with ropes. Both the complainant (PW1), and his wife (PW3), related to the lower court that the appellant was one of the people who tied them with ropes and pulled them outside their house. The complainant also told the court that it was the accuse.d who attacked him with a "sime" and threatened to kill him if he continued raising an alarm. It was also in evidence that the night was well-lit with moon - light. It was not at all in dispute that the appellant lives in the same village as the complainant and that he was well known to the complainant and his wife before the incident.. From the evidence it was amply clear that the accused did not only participate in tying the complainant and his wife, but he is also the one who remained behind guarding the complainant and his wife while the other robbers were hustling the beasts away. He is also the one who attacked the complainant with a "sirne.." This being the evidence both the complainant and his wife had ample time to Identify the accused as one of the robbers. There was also evidence that some of complainant's stolen cattle were found in the possession of one, Ligono (PW2), who mentioned the accused as the person who had given him the cattle. This evidence tended to confirm the evidence of the complainant and that of his wife all the more that the accused was one of their assailants. I agree with the Republic submission that the accused was amply identified as one of the robbers on the material night.. Appeal against conviction accordingly fails. This case was actually admitted to hearing for argument as Lo whether the sentence of 8 years imprisonment, which sentence exceeds the mandatory sentence for this offence. by one year, was appropriate for a first offender. The learned state attorney argued that accused's use of a "sime" in attacking the complainant merited a sentence above the mandatory sentence of 7 years imprisonment. This Court has always held that first offenders should, unless there are good reaeons to the contrary be treated with leniency. In this case I agree with the learned state attorney's submission that accused's use of such a lethal weapon as a "sime" should be strongly deprecated.. This was a most serious case of robbery, and violence was used. Exhibit A, - complainant's POF.3, shows that he, as a result of thc attacks on him, suffered a stab-wound on his left, arm as well as multiple bruises and swellings. The seriousness of armed robbery cannot, be overstressed. Such robberies as this one often lead to senseless and brutal killings. On the facts of the case the sentence of 8 years impri- sonment cannot by any stretch of imagination be said to be manifestly excessive so as to. call for interference by this Court; accused's unblemished record notwithstanding. The 'sentence of 8 years imprisonment stands and it, is hereby confirmed. In the e.vent this appeal is dismissed in its entirety0 DODOMA 10/3/75 t N.. S. ' VA JUD Appellant - Absent and unrepresented: Mbiiinyi for the Rep/Resp.