19750319 TZHC Mwanza

'- .• - /- AT MWANZA APELLADE JURISDICTION HIGH COURTCRIMINAL APPEAL NO. 298 OF 1974 .. . ORIGINAL CRIMINAL CASE NO0 357,.. ,.OF 1973 u. OF THE DISTRICT. COURT OF MASWA DISTRICT00 0 , OMASWA Bfore NL6 .MSAk)E Esq., MIGISTRATE ELIAS F'LADUH'(JOO 0 . 0 . . . 00 000 0 0 0 0 • 0 0 0 0 ... . . .. . . ..... • . . ... QAPPELLANT . .. . .. (driginal Adc-used) versus •- . THE REPUBLIC.. 0 0000000000 00000000000 ,00.ORESPONDENT . (Original Pr.secut.r) ,-OoQ- .. . .. CHARGE: 1st Count - Robbery with violence c/ss 285 and 26'of the Penal Code 0 •;. 2nd Count - Attempted robbery cjs 287 of , iie Pnal Code. J U D C M E N T MAGANGA. Ac. J.: The appellant was charged with robbery with violence and attempted robbery0 He was acquitted on the robbery charge bu.tconvicted,on the attempted robbery count and sentenced to the min.mum seven years imprisdri- rnent. The prosecution case was that on 17th September 1973 at about 11.30 p.m., the appellant together with other persons with intent to steal from Mbugani Grow€rs Cooperative Society used actual violence to Nangala Mwigulu, Mboje Tumba and Elias Ludamila by firing a shotgun at the said persons to threaten them0 The evidence for the prosecution was that sometime in early September 1973 P,W.,3 received information on a plan to rob the society on 17th September, 1973. This information was passed to the police who, on the day mentioned, laid ambush at the society at 10 p.m. At about 11 p.m., PW1 saw a person rush to the society's office building and reduce the light on the hurricane lamp before retreating. Shortly after, two people emerged from the direction of the godown one of whom was carrying a basket and the other carrying a gun. The two men broke the office door using a hammer and entered the office. They further broke a door leading to a smaller office inside. PW1 then signalled the other police officers to take positions around the office and after this he called on the intruders to come out of the building peacefully. He announced that they were police officers. After sailing to get response he and the other, policemen fired in the air and thc intruders responded by firing back, one of the bullets striking PWI's leg. After a period of exchange of fire and the intruders' refusal to surrender 2W1 ordered the policemen to remain where they were and wait for the intruders to come out. While waiting, one of the intruders ran out and disappeared in darkness. He ordered PW2 and PW5 to enter the office to apprehend the remaining intruder. Both PW2 and PW5 testified that they found the intruder armed with a hammer and a gun and disarmed him after a struggle. As they were taking him out of the building he wriggled out of their hold and started to run but he was shot on the leg and he fell down. He was then arrested. It was the appellart who was shot on the leg and arrested at the office premises and he admits Ithis. ./2 The appellant's defence was that while on his way home from Mwamapalala he passed near the society premises. As he paed by he heard gun shots and people running towards him0 Before those people reached him he was hit on the leg with a bullet and he fell down. Shortly after that some people went and he i4n with ropes before they rushed him to hos- pital. He was Mibsequently charged with the offence. The learned trial magistrate believ:ed the evidence of the prosecu-. tion witnessesard:hild that the appellant was actually shot while he was trying to flee from the policemen whon arrested him inside the office. He therefore.fôund that the appellant was caught red-handed. I think his conl-ion a.S., fully supported by th evidence adduced before him. Furthermore there was evidence by PW2 and the other police officers that they observed dents on the safe door. In my view the breaking of the two doors and entry into the room where the safe containing shs. 31,000/= was, went beyond mere. preparation to commit the offence of stealing the money.1t infact-cQnstituted anatteihp€ a legally-defined. Sihce- in the course of the attempt force was used to the extent of shooting at the party of policemen, the offence of attempted robbery was proved. The appellant's conviction was therefore propr. The sentence passed was the minimum the law provi-des. This appeal is therefore dismissed in its entirety. ... -.. . S Delivered this. .19th day -of MRC.H, 1975. (0 .: MWANZA O R . ' MAANGA \ 19th MARCH, A2. JUDGE Mwaiyika for the Republic.