19770510 TZHC Dodoma

IN TE8 HIGH COURT OF TANZANIA AT DODOr-IA APPELLATE JURI::3DICTION lo, HIGH COURT CRIEINAL ArI'LAL No.•' 1 25 OF 1 977 ORIGINAL CRININAL CASE No. 506·0F 1976 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IllINGi BEFORE: J • L • M\'JALU S;tNYA ,. • Cl R:SSID:Si·:T LJ.G-ISTRATE EMIRIO JUMA RASHIDI .. . . . . . . • .J.PPELLANT versus THE RB}')UBLIC • • • • • • • . • • • RDSPON::rcNT CHARGE: Robbery with vi,)l,mce c/ss 285 and 286 of the Pen8.1 Code. J U D G ME N T CHIPETA. j .• The appellant, Emirio J1)..ma Rashid.i, was jointly charged with four others, who were acquitted, ·with the offence of robbery with viol·,m.co c/ss 285 and 286 of the Penal Code, On conviction, he w2s sentenced to seven y3ars imJ:-irisonrnent. He now appeals. In brief, the J;ros2cutiori' s evidence was as follows~ On 20th July, 1976, at about 7.00 a.m. one Jose:ph L1mgeni (Pw.5), a servant of the com1jlaina.nt (Pw.3), ent,;red the complainant's house through the front door after Pw. 3 had opened it for him. Pw.3 and his wife (Pw.4) rGr-ained in their bed-room whil,,) the house-boy (Pw. 5) went to the l:ackyard to start his day's chore. When Pw. 5 op,:::ned th(~ door L:iading to the b:.-wkyard, he sr~,w six persons in the backyard. Apparently ·::1:1- "; six persons had gaint.:d entry into the backyard by clirn:Jing the wall of the backyard. Two of those people had cl, d2, ,3-er and a knife respectively. Those two stood closu to the door of the backyard. The noxt two stood J.:oaning agains c the wall of tt1e backyard, while the remaining two stood close to a washing place within the backyard. According to Pw., 5 one of th;;; two who were arried was the a)pellant. As soon as Pw. 5 opened the door, tho appellant ,,md anot:1:-ic:::· pointed their dag,;er ;,;,nd knife at h.irJ, whereupon P~1. 5 shou tecl "thief~ thiefi" Tho culprits, howev:'~r, crowded. him and pushed him farther into the roora 8W1 locked him in a bathrccr: frora outside. Two of the culprits then rushed to the bed-room where Pw. 3 and Pw. 4 were. Pointing a dagger arid knife at Pw. 3 and Pw .4, the two cul1Jrit s ordered their captives to show them where the money was. Pw. 3 then pointed to a cupboard from which one of fu c culprits, whom they identified to bt.:l the appellant)collectod 1:hs. 10,000/- which Pw.3 had kept ready for banking. Not sati@fisd with that amount, the culprits den2snded more money. FGarinc for their li v,~s, Pw. 3 sh owted t}::.c appel1 :,:::t some ·precious itens in a drawer of the cupboard. These _ included rings, bracelets, wrist-watches and necklaces • • • •2 2 .... The culprits. then took all th·?Se precious articl 1'.:S. Next, they seized ·tjH➔ watches which Pw.3 and P1;-.4 were wearing, and pushed thc::ir captives into a toilr:Jt 211d. locked the toilet door from outside. Some minutus la.ter l'w.3 and P·w.4 shouted for llslp. Their children woke up ,::,nd opened the toilet door for them. The matt8r was immediately reporte1 to police. One day early in August:, 1976, the appellant and anothGr man ( who was jointly charged ,,-Ji th the appellant but was acq_ui·'·ted) ent(Jr,c;d a bar belo:n.::1ing to one Elizabeth Chonya and started drinking. One Anna Ivifundo (Pw. 7), who was a girl-friend of the a ,pella.nt's colleague, used to work in tha. t bs,r. At about 8.45 p.m. the appellant took out a ring from his pocket and said tl:ta·c he had brnught that ring from D' Salaam as a gift for Pw. 7. He tl1en gave the ring to Pw. 7 in the presence of two other bc:.trmaids, one Anna Msofu (Pw .8). and one r110ni ca, who was not called as a wi tn 2: ;:3 s. Some days later this ring wrJ,s seized by police encl P.w.3 anc'. Pw.4 positively idsntj_fic.:cl. it to belong to PvT.4, and said that it was one of th,~ ~,)rE.,cious iten,s stolen from t:1sir house during the robbery. Subsequently, the ar,pell2nt was arrested. At a police identification parade, the a)pellant was identh:L::3d by Pw.3, Pw.4 and Pw.5. The appellant put up a defence of alibi. · Ho said that on the day the alL,gf;d robbery was perpetrated, he was in D I Sal,;.am. After carefully evaluating the evidence, th:~ J1c:, arned resident magistrate accepted th~J '::Vidence of Pw.3, Pw.4, Pw. 7 and Pw .8 zmd found 1:-:i,s a fact that not only ·was the apP3 llo.nt properly idcnt ifi ed by Pw. 3, Pw. 4 ;,:nd Pu. 5, but also that he was the ·erson who gave th') rinr:; to J?,-r.7. He accordingly ri:;jected -the ai;:,p ellant' s alibi s.s a fabrication. The learned mag is trc.te then convic tec1 the appG] 18,n.t as charged. , On my own vi,=;w of the evidence, I am satisf.h,d that th,3re was 2mpLJ l:.vtd.Gnc e ir.rplic :3,ting the a)pe1lant. The eviderc e of Pw. 3, Pw .4 and. Pw. 5 that the a:ppella.nt was one of the culprits is ful1y supported by the ,'::vidence of Pw. 7 and Pw.8 that the a}rella11.t was found in po~·s,c,csion of the precious ring within les,9 than a month from the date of the robbery. In ths circurnsta.nces; th-·:rufore, I see no reason on which to assail tlH:J conviction. As the sent snce of seven years im:pris@nment is the statutcr·;::r minimum, it is to stand. The ap:peal, th,,r::.:fore, fails and it is herGby accordingl;y dismissed in its entirety. /: 1/,.' ! i 1.! · ·:· ./ ·'\ i ,/' ' : ( '( B .ri. --CHIP',' A JUDGE Delivered in open Court at Dodoma this 10th day of August , 1977.