19770503 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLAPE.JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 270 OF 1975 C/F 271/75 ORIGINAL CRIMINAL CASE NO0 192 OF 1975 OF THE DISTRICT COURT OF ROMSO DISTRICT iT MKUU Before S.N. Sharyany, Esq., -- ------------------- District Magistrate 3 MES SAMALI ------ ---------------- -- - - - --- -- - -- APPELLANT - (Original Accused) versus THE REPUBLIC ----- ------------------------------ RESPONDENT (Original Prosecutot) JUDGMENT I Jonathan, 3. The two appellants 3i14S SAMJtLI and ALEX ABDALLAI1 were cdnvicted jointly o robbery with violence. From the conviction they have appealed to this coutt. Qn the relevant night t about eight o'clock P,W 1 the conplinant Seems to have been attacked by two or three- people and robbed of the grist watch he ç was wearing. t the relevant time he was in the company of P.W ~ and P.W 3 returning.home from a visit they had ade to omeone and one would be tempted to presume they had been drinking. POW 2 and P.w 3 were some distance ahead of P0W 1. However,how-fat:ahead that is not quite iear,: POW 2 'did say they were only three, paces ahead of the complainant, but judged from the circumstances of the case it is unlikely that there was only such a short distance separating them. There are a number of important cthtrdictions in the prosecution case to which the lower court do tes not appear to have made even a pessing reference. According to P0W 1, he came across the appellants and another person, whereupon the first appellant JAMES remarked that they had come across the man they had been looking for. The second appellant then twisted his left hand and removed the watch. He raised an alarm being watched by the appellants and the other person'. His companions, P.W 2 and two 'girls, then returned but they could not get back to him on account of some persons he did not know preventing them. The gangsters then disappeared. Both P.W 2 and P.W 3 in their evidence broadly support the account of the complainant, in particular, they say they recognized the appellants. As has already been stated àbbve they however differ on a number of important particulars. Firstly, fc the complainant who said the gang comprised three people, they said they saw ten people. Secondly,, while P..W I said the second appellant twisted his arm and robbed him of his watch, P.W 2 said the second appellant held the complainant's neck whereupon the first appellant removed the watch. P.W 3 gave yet another version0 He said the first appellant held one hand of the complainant while the second appellant held the other hand and the third person the body. The watch, they said, was removed by the first appellant. They said they then raised an alarm and the other seven came0 it is however not clear why these should have come since the robbery had accomplished, while it is curious that all three of them should have stood by to see the appellants robbing P,W 1. P.W 1 has however explained that his companions were prevented from coming to his rescue. But this has been refuted by P.W 2 and P.W 3. . . . .. .12 The appellants in their evidence said that on the material night they were together away. at a party and they did not return home till the next morning. This was supported by D.W. 3, the father of the first appellant who said the appellants had gone out to attend a party and returned on the next day,. and by D0W 4 who said she saw the appellants at the party0 The defence evid'mce was however rejected by the trial, court, the learned dis€± - ict magistrate observing that the prosecution witnesses, themselves relations ofthe appellants, had no reason falsely to testify against them, I gree 'they may have had no rason--fai'se'iy t&im1i'cate them, butthe c&urth'ad also to decide if the circumstances were such th.t .they could not have mistaken some other people-for" thäpell'ants' - N'ow, as lh5ve at€émptéd to show, a close scrutiny of the evidence would seem to suggest that the circum- stances were generally unfavourahle.for the prosecution witnesses to identify the culprits and that.th.a absolute certainty.the witnesses claim is-suspect,- andiri this concti6i'i - . ± relevant to note that they do nat appear to have..identified the person they say was with the appellants, nor indeed any of the oth r svLr1 P.0 2 and P.W 3 said the saw. 1 think, therefore, - tha€ the'aluii. of the appellants, was too readily rejected. The learned state attorney seeks to support the •onvictions but for the reasons - i have attempted to show it would be unsafe for this court to uphold thcm. Accordingly ) they are et aside and it is'árdered' the appellants be released from custody - if they are there only on account of this case. 0 Delivered in open court this 3rd day of May, 1977. PM. jONATHAN Y JUDGE. - PMJ/GKK