19751031 TZHC Arusha

rwr T' •.-- - - - -__--- v'r"w". / IN THE HIGH COURT OF TAi'TZNIA A rn iPTTTi RIG-H COURT CRIIaNLI APPEi.L NO. 350 OF 1974 ORIGINAL CRII.IINJ CASE iQ. 88 OF 1973 OF THE DISTRICT COURT OF HIPDEITI DISTRICT A HAI'rnENI BEFORE: B. S. HOZA Escj., Dis -brictr.iaistrato MOR1JiED Li7EITJUI1 . .. . . , . . . . , . . . . , . . . . . . . .APFELL11,TT (Oriinn1 Accusod) vorsus TdEJEPLIELIC .............. ...........,,..RESPOI'tDEPTT (Oriina1 Psccutor) JUDC-NT I • .JONATILfN, J. Tho appdllani- was in i-ho Disi-rct Court coniictod of • ... .robbory with violonco, c/ss. 285 and 286 of the Poncti Codo Ho was ivcn i-h... nininixci scni-cnco. I-b was. also ordorod. to pay thocoplainani- i-ho sun of is.700/ as coipcLsation. Tho conviction was dcsorvod and i-no mua1 was adii:b -bod to hcarin: only bocauo. i-ho scrp of the • : •cvidonco, ac firot glance, was almost irpossibic to road. Ac:COTdin tO tii cZmO1.aifla!1G (2..I), a ')UolflcsSnafl trading* in cattic, and P.:i.2, his aosiiGant in i-ho husirLoss, i-ho ;aID2011ant on i-ho 'o1ovant mornin: coxco to i-ho houso of P.W.I with i-ho ciossa;o i-h i- i-- h.. appollantts father, with whom i-ho co:p1ainant had proviously had buinoss doalinL:s, • had. throc hoad of cattlo to SC13. to rii:a. The coi:ipiainant had only siis.300/= on hi:. which was n:t ou±'ficicni- for the thro anionlo, but ulDOn boing porsuaciud by i-ho appellant, he and P.W.2 accoipanicd i-ho appcllr:t to soc his fathor for the .trcolsacti:n. Thcy sot cut .on two bicycics, the c.:ip-1aihant and i-ho apjollant riding . n the sonc bicyclo. Ii- was und.o' i-ho contr - .l of i-ho co::p1ainani with the • appollant sitting on th 1xck scat. PW.2 rodo is bicycle •- quii-o some distanco behind thom. Nor, ci sono stage, while riding uphill the apol1ant got ff i-h.:. bicyclo and pulled off i-ho ccoplainani-. Ho drew :ht a knifo and throatcninrg • . • the complainant with it doriandcd all i-he monoy ho had on him. • Ho handod him i-ho cu. of s.3OO/=. Thc incidcnt Was SOCfl by P.-7.2 who was brinu. thom. Ro apomrod o have " -ot 50 •. frightonod. himsclf i-h ho rnc[c back i- the village to oport • the incident. In the :ooani-imc, aftor fr±glatoning away i-ho complainant i-ho accuocd lisap arc.d with i-ho bicycle. It was tho proporty 'f the c:.mplainani-. That i-ho appollant wont to i-ho c.omplai-nront's h -:.uso that ncrning is furi-hr supper-cd by the account of P.7.3 who happonod to make a visit i-horo. . .0 Tho nattcr wasiimacdiatoly 'oportcd tO i-ho polico who, • . on i-h. samo day, proc coded, to i-ho house 'of i-ho appellant. He was not thoro, and hu was net found until nearly i-hroo and a half wooics later whon, according to sorgoant Vincont (P.W.4), the -o:pollani- upon seeing the c.:mplainani-. tried to hide himself The accus..d..cicci-.;d to say nothing in defence but called his two broi-hcrs as dofnce witnossos. . .. ..... . . . - 2- • -• D. 1.1 TLten'cd t pr - vico hir with tn libi. He arid th b during ho rlcv-int peri I ,, thoappcll mt 7oms n tat - ' o; 1 ho ns o ny 'ri o'f ri nd hd JLt t hL Is rturncd hm io when ho was arrested. This was nc:G nocessrily infavou. of the pallnt. F r, it was - th. citin cntcnbrn the ho wa's ahic.. during the relevant tioc . On tha. contrary, they wore smin Jrt he vims nb ob Ia c. D.i.2 was c ploc1y irnhe'ljful 9 he lmcw nthing b ut the L1atter. The tcrl c art, An ir vica, c co . n iht was inevitable :nd thi court cannot possibly upset i -b. The appellant in his petition ceepIains however, -that the trial ogistrato in view o certain roLraks ho nado when passing sentence, was basod a ;jn ist h000. This ccoiplint is not baseless 9 for, the learned district 1iagistrotc after noting that the conplainant •w of a weak froeoo' and that the. apol1nt ns rnt l - kin" he ror 1ad, nd I quote, apart frr bcin i - nt the accuso is brutal lookino n. His face can tell to what degree he is a criiia l. Those renerks,as conceded by the Republic, were e.xtronoly - unfortunate. They are not borne out by any evidence while they wore nt calculated t; ro±'loct the inpartiality and fairness that has always characterised our judicial ysere. They eiignt not to hovo boon :ado. s I. have said, n(--;wover, the -eonvictior, on the evidence iafero the court, was unavoidable and richly losorvocl. The remarks cannot affect the scauidncss of this c'oeclusi n Ac re rs the senunce 1u hc o im t, 7,, nJ the wcro r e 1 Ly f 12C. effect. In the resul'1 th pel s 'ruis.,d in its entirety. (p k. JO\TATIIA1 T) •- JTGE.: Delivered in open ccnrt thie 31s& oj f Oet'er, 1975. • / JOI'JATJ-iH) PHJ/TPT: JUDGE. 4. - c - •- -. •. •'