19750715 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 300 OF 1974 ORIGINAL CRIMINAL CASE NO., 87 OF 1974, OF THE DISTRICT COURT OF MANYONI DISTRICT AT MANYONI Before E.B. Kiwanuka 0 . ., • . District Magistrate Charge: Robbery with violence, contrary to section, 285 and 286 of the Penal Code0 Cap0 16 Vol. 1 of the Laws0 JUD GM EN T MAP.IGANO, J. This is an appeal against a conviction of robbery and a sentence of seven years imprisonment. The only disputed issue was whether the appellant was one of the two people who committed the robbery 0 The incident took place on the 6th June,. 1974 in Najengo area in Itigi at night0 The prosecution case shows that the complainant Laurent Mwalukr and his wife were proceeding from a pombe shop0 Two people appeared rc:: behind and assaulted them. The attack was sudden and it occurred in dark.0 Both f4waluko and his wife claimed that the appellant was one of their attackers and that they have been together at the pombe shop a short time back. They claimed that the appellant caught Maria by the neck while his companion caught and threw Mwaluko on the ground. And that the appellant made away with thcir basket while his companion forcibly took and ran away with a sum of shs. 1751=0 Both witnesses could not identify the man who robbed Mwaluko of the money on account of darkness0 The appellant denied the allegation and put up an alibi. . But the learned trial magistrate believed the two prosecution witnesses and disbelieved the appellant. I have carefully coi isidered the case and I am of the opinion that the evidence of the two prosecution witnesses was weak and did not establish that the appellant was certainly one of the robbers. Because the attack took place in the dark and it was sudden. The prevailing circumstances were such that the two witnesses could noteven pretend to identify the other culprit. It could well be that the witnesses suspectad the appellant merely because they had been together at the pombe shop a short while back0 Consequently, I allow this appeal, quash the conviction and sev. aside the sentence0 The appellant is to be set free unless he is detained lawfully on another ground. Delivered in Court at Dodoma. •c1 ---- 15th July, 1975 D.P. MAPIGANO JUDGE