19770521 TZHC Dodoma

l IN THE HICH COURT OF 'l'AHZ!i.NIA AT DODOM;\ APPELLATE JURISDICTION HIGH COURT CRIMINAL APPE,'.L NOo 12 OF 1977 ORIGINAL CRIMINAL CASE NOo 433 OF 1976 OF THE DIS'rRICr Q)URT OF KONDOi\. DISTRICT NE KONDOi, Before Mo Ao Upaga~ o o o o o o ·o a & o District Magistrate SELEMANI S/0 OMARI ., o o o o o o o o o o • o o o o o o APPELLANT (Original i\ccused) Versus THE REPUBLIC o o o o o o O C O O O O O 0 o RESPONDENT (Original Prosecute:.:-' Charge: Robbery c/s 286 and 288 of t;p P:;nal Codeo JUDGMENT CHIPETA, Jo The appellant, Selemani Omarj_, was convicted by Kondoa di strict court of the off,mce of robbery_ c/ s 286 of the Penal Code, and was sentenced to sev0n y.,ars imprisonment un_der the Minimum S0ntences Act, 1972.. He now app,~2ls. The appc;llant, however, has since escap(-~d from prison, GJ.1d his appeal had I 1 •• , heard in abst-=:ntiaa The prosecutions evidence w,:1.s ·cl1at on 10th September, 1976; at about 3o00 p.m., the appt;.'.lant, who was a total stranger to the complainant, entered. the complain2J1.t rs room wht..:re h~1 found the complainant and her you.ng sistero on entering the, room the appe:llant demanded mom"y from the complainant ru1d threatened th.--it h:_, would destroy; her if she did not give him money o He then held her hands, 211d th,::reupon the complainant's young sist,>.r rushc:d out of th: room and went to report to their mothi-cr (PoWo2) that th,.re Wu.S an intrud(.;r in the complainant I s roomo In the mc::antim•~, the complain:mt hi:rself rai~ed an alarm: but b'·.:fon: PaWa2 and oth0:r people arriv12d at ·i:h,,_, scene, th,:: appellant grabbed sh So 30/=--, which th,c complainant had kept in a b ac and put i t in his pocketso When PoWn2 and oth,-)r women arriwJd ut the sorne, the appellant disappeared from th,~ scen(;o H~ w,,s, however, found in a certain guest house later thc;t evenin 1J, ar,c-:_ ·with thc0: assistance of a militia man he ,✓ as apprehended and taken to polic,2 s.tation. In his def~mce the app:~llant tcld th2 trial court that he had had an affair with th,.c compLu_nrnt the previous night, and tha.t th,:y had ag.~P.ed that h,:: should visit h2r house the next day.. On the day in qw~stion he went to h r liuusri at 3.00 p.mo ~iL:: th,:r,: he drunk local liquor and th,?.n lE:ofto L.:::tb:,r while he was in a guest house waitinq for the complainant, h, was surprised to see a group of p1.:ople who came for him and appr,:::htmded him. As correctly submi tt- d by th,:: 1, D.rn.:)d state: attorney, 0 this case depended almost entirely on th,, cr,:;dibility of th,::: complai- nanto The lr:!arnc:d district magistrate, who had the advantag0 of - 2 - hearing and observing ~he witness, accepted the complainant•s evidence as the trutho On findings of fact based on th<=?. ·credibility of witnesses, an appell a1w court will not lightly interfere with such findings unh~ss it is satisfied on its own view of the evidence that the~ tri::J.l judg<.:: or magistrate has plain. ly gon(~ wrong.. This is as it should b·...: b<',cause a trial court has had the advantage of having h<:::ard th•2 witnesses and op~erved tlwir demanour, an advanta0e not available to an appellaire court·.. In the words ·of Lord Shaw, aft2rweirds Lord Dunedin in ~k_·. _ v .. Edinburgh Tramway Co.. (1919) S .. C .. (H .. L .. ) 35: ,_,wi tnessP. s with out any conscious bias towards a con cl us::.::-:~ may have in their demean our 9 in th,...:ir mannr,r, in their hesitation~ in the ,:-.-~r·'!cii8 .:if th0ir expressions and even the turn of an eyelid, lc~ft an impression upon th,2 man who saw and heard them which could never be reproduced in the printed PG<Jc::.. \'Jhat in such circumstan-:::~~ s thus psychologically put is ·che duty of an appE:!llate court? In my opinion the duty of an appellat~ court in these circumstances is for .::,0.ch judge to put to him- self, as I now do in this case, this question; ' Am I, who sit here with out these .aclvantages, sometimes broad an 1 sometimes subtle, which are thE.: priviledges of the judge who heard and tried the cns2, in a position, not having these pri viledges, to come to a cluar conclusion that th~ judge who had them was plainly wr....,ng, If I cannot be satisfied in my own mind that th,-:: judge who had them was plainly wrong, then i t :.:pp,.:ars to me to bi:~ my duty to defer to his judgmen t 11 • In th~~ instant case, as the incident happ:;nl:,d in broad daylight, th,'re can b•~ no qu,~stion of mistaken idcntityn coul-:::l the complainant, then, have framt~d ·:.:h, appc!llant?I do not think so., While saying that ho. had had a love affair with the complainant, t:1-. appellant admitted that she was a totcll strang0r to him, and added that th,~re was no grudge between him and <S,1y of the witnc:sse s~ If the appellant had ')One there c1t the~ invitc1tion of the complainant. I cannot see why hE~ · should h,we b,!en found by PoW .. 2 quelling with the complainant in her room.. Indeed, if he was an innocc.:mt invitee of the complainant, _I cannot s,-!e why tht! complainant's young sister s ·i should have rushed out of the room and gene to report to their mothf~r th a.t there was an intruder in the: complainant's roomo In my considE~r;;:;d opinion, therefore, the L:orn,x1 mc1gistrntets finding that the complainant was a truthful \vi tnE:ss cannot b,::; faulted. Was the offence of robbery committed? I will answer thut question in the affirmative.. Not only did th., nppellant threaten th,::: use of violence, but he actually assault,~d the complcri.nnnt in order to steal the money or retain it .. In all th!'?. circumstancus, 'chcr,:;for0. 1 I find that the conviction was well-foundedo The sentence, as noted, is ·i:hc-! statutory minimwn .. In the result, the app~,al f;:_i;i.ls and is hereby dismisseri,, /'; ,j ' 1 . 1 1-x._(I/ :1 i __.- -1iv: I l,, / i // , ; ' • 1• . '·;' DOOOMA ~-.. ~-~ ·cHJ; ETA. 21/5/77 JUDGE Appellant, absent and unrepres~nted .. Mro Mchora, Counsel for the Republic.,