19770509 TZHC Mwanza

4.0 IN THiS hIGh COUJT OF TnhZnhIA JtJ. 11 2.J.'JLh fi1LLtfE JUNISLICTION HIGh COLJhT ChIHIAL Pi-i•L No. 41 OF 1977 (Original Criminal Case No. 7 of 1976 of tne District Court of Kwimba District at igudu, - Lefore J. H. Kagine, Esq., District iviagistrate). THE H. UBLIC . . . . . . . . . . . * .......................... . 'hOHLCUTOR versus BUPILIPILI YihA-NGNit .. ........ .o.o..o.. ......... ... ..o o APP.SLLANT CHARGE: ROBB.hiY .dTH VIOLjsOj C/S. 285 and 26 of the Penal code, Cap. 16 of the Laws. JUDGn:hT: LUGAKINGInk, J.: The appellant and another who has not found occasion to appeal were convicted of robbery anu sentenced to even years' imprisonment each. It was alleged in the charge sheet and later testified that on the night of 6 December, 1975 at Iduha village in K wimba District, the two stole cash shs. 400/= from Luchagula Mangongo and used iiolence on him in the process. It was s&jd thatti-1e intruders had a torch directed against the victims. In this wa Lucheigula and his wife purported to have identi- fied the intruders as the appellant and his colleague. Even the learned trial madistrate accepted this evidence and added his own extraneous observations saying, "bearing in mind the torch had bean lighted against the complainant and his wife •'ho had retired into their bedroom, I presume. Further consideing the capacity volume of the house built by most of the masses in tais country. I hav4 no doubt to believe that the complainant and his wife had sufficiently identified the accu- sed persons etc." It is strange to think, as did the trial magistrate, that one can see behind a torch ciirected against one. The t would be testing the very laws of nature. There was, on the othor hand, no evidence about the type of house the complainant had. Our courts cannot presume that Tanzanian masses build tiny huts. I find, therefore, that the evidence of iu.entification was most unsatisfactory and I tiiink it was dangerous to base a conviction thereon. I will allow this appeal, quasil the conviction and set esie the sente- nce imposecL.The appellant should cc freed 'orthwith unlace, further lawfully held. •'\ '. k.&k- 'L'\ K. H. K. LUGKI1GIhA, JUL Gi MvjaNZA 915/1977.