19770829 TZHC Arusha

it it IN THE HIGH COURT OF TANZANIA AT ARUSHA Af ELL/TE JURIS)ICTION HIGH COURT CHININAL APUEiL NO0 199 OF 1976 ORIGINAL CRIMINAL CASE NO0 157 OF 1976 OF THE DISTRICT COUPT OF ARU3H1; DITFICT AT ARUSHA Before J.J. Nkwawa, Esq0, Resident Magistrate SIMON MARUNDA -----------------------------------APPELLANT (Original Accused) versus THE REPUDLIC -------------------------------------RESPONDENT (Original Prosecutor) J U D G M E N T Jonathan, J. /three in the district court the appellant was the first of/accused persons charged jointly with robbery with violence c/ss 285 and 286 of he Penal Code0 The 3rd accused in the end was acquitted while the ppellant and the 2nd accused were convicted as charged and duly sentenced0 From that decision only the appellant has petitioned this court0 On the relevant night at about midniqht an armed raid was made on the premises of Philips Factory, Arusho in which the gangsters after gravely injuring two of the four nightwatchmen then on dut'. broke into the factory and stole 18 radio sets and 4 record players0 On the next day upon a search being made in the house of 2nd accused a wireless set and a record player were found0 These transpired to be among the sets stolen from the factory on the previous night0 Accordingly, he was convicted0 As regards the appellant the facts are different ar 1 may say at the outset that they pose considerable difficulty0 Accordihg to P0W 3, P.W. 4 and P0W 5, that night as they kept watch at the factory they saw a man, who turnad out to he the :2 .rint, entering or having entered the grounds of the factory0 POW 3 said he saw him having entered but P0W 4 testified he saw him cutting his way through the fencing wire0 P.W 5 had a slightly diffrent version for, he said he saw him creeping into the compound0 POW '1 then added that, the appellant upon entering the compound headed for the telephone kiosk and attempted to cut the receiver cabje, Jcreupon he was confronted by P.W 5 and the fourth watchman0 On the basic of such evidence the court found that the appellant in attempting to cut the cable i.tended to cut off communication with the ohtside world and accordingly, the court found there was a link between such act and the subeeguent robbery0 1 think the evidence of P.W 4 was too readily acted upon0 The impression to be gleaned from the accounts of POW 3 and P.W 5 is that the appellant was arrested in th .ompound and not inside the telephone kiosk0 They would have seen if he attempted to cut the telephone cable and they would have duly said so. The telephone is said to have been found out of order when they tried to telephone the police, but there was otherwise no suggestion that its non-functioning was the result of tampering by the appellant. 1 would also think that fincer impressions of the appellant would have been visible on the cable if he had infect tampered wkth it, while it is not altogether insiiificant that no weapon or Inst uren found on him. There is reason to think that P.W 4 was given to exaggerin For, apart from what 1 have only just rioted above, -JR --2-- he testified, as alr-ady stated, that he saw the appellant cutting the fencing wire. Now, to do so he must have, had a dviec for cutting but. not only is there agreement that he had no weapon when he was arres?ted but there was also no evidence that any fencing wire was found to have been cut. P.W.41s evidence of the appellant attempting to disconnect the telephone not having been, supported by any other account and other indications pointing coñtrary-wi.se, the lower court should not in my judgment hcve placed reliance on it. Back to the árrest ; there was evidence that the appellant who s drunk upon being incerroçjated by the watdhmen said their vehicle had broken down and he needed help, hence, presumably, his heading for the telephone. Dissaisfi.ed. with such exlanation P.'J 5 and the fourth wa€chm' took J. to the Mount Meru Hotel, which the trial court estimated to be upwards of 200 metres away, from whore they telephoned the police. ;ccording to P.W.5 ..efter they made the telephone but before the police cries the direction of the factory. Within a short time the police arrived and, they turned the'. H appellant over to them. They then proceeded to the facLol'y to,find the two watchmen having been gravely injured and the factory broken into. P.W 3 narrating what had since transpired testified that, not long after the appellant was taken -away he suddenly found himself being attacked with an axe by someone in a-big gang of 'armed robbers. He raised an alarm and soon lost consciousness., 'p.4' for his part, .sbid he went to the rescue of his colleague when he, too, wast upon and beaten to the .grouhd unconscious. They were both rushed to hospital.. The appellnt in his defence said during the day, aft;r work, hehad a isit to D.W. 4, his brother-in-law where he stayed until 9.00 p.m. when he left for home. Upon coming to the Munt Mru HoteiT,he saidwatchmen of Philips factory stopped him and alleging he ws acrimiñal they arrested him.and handed him to the police. 130th D.W.. 4 and D.W. 5 testified in support that the appellant had infact been at the houe of the.formEr having drinks until 9.00 o.m. They would not however know his movements between that time and the time of his arrest. The learned resident magistrate in his judgment founc' it to be . suggestion that the appellant had been arrst 1 0not in the:grounds of the factory but at the Motnt Moru Hotel, more than 200etr'es awe::. I respectfully aqree the appellant did not tell the truth, considering ---hp. three watchmen had no reason maliciously to put him in trouble. he trial court havin rejected the defence then drew the conclusion Lhat the appellant had been in l.age '.i±th the gang that had later stormed--in in doing so howevr, as 1 noted erlier, it wrongly put considerable weicht to the ail:cjation of P,W 4 ;thatthé appellant had attempted to disconnect the tllcphone cable. Thee.evidence seeking to connect him with the robDery that follo'ed as frcumstancial and in order to convict the fQcts had to he such that .they:d irresistibly to the conclusion that .e had been acting in concert- with the robbers. ,and that they are incapable -- of any reasonable explanation other. than that of The facts such as 1 see them, were that the. apeliant i-atd 'in;the night was found -in the compound of Philips Factory. and Tthat a little later the" raiding occurred. Th time interva'aOnot.howeverbe gauged with precision, but havin mnd ..he sequence: of vents'-the appllants entry, his arrt and th interroation b'y the watchmen, tn ir Un- availing telephoning, their taking him over the ditncc tothe Nount Meru Hotel, their telepbon-irig 1ie police from thre zan. thefi .00000000/3 - hearing the cries the time interval must have been several minutes, anything upwards of ten or fiteen,minutes.. o th.ese.circumstaces may be added the appellant's lie when he sa's he was arrested at the Mount Metu Hotel. The question may then be asked: Can it ba inferred from such facts alone that the appellant had been collaborating, with the gang that later broke into the factory? I W i culd be unable to say there Was necessatily suh nexus. The appellant seems to hve been there for an unlawful purpose but in view of the considerable time interval between his entry there and the subsequent inVasionit coUld not safely be concluded he was on the same errand with the armed gang. it would have been a risky and an unreesona3le move for the appellant to enter the grounds alone in order to disconnect the telephone, it was a big and heavily armed nang and such tei.e:bone disconnection could have been done in the same operation as the breaking.-in after beating the watchmen to silence, ir5 f sending the appellant alone with the ...... attendant danger of betraying them in the event cf being caught. Accordingly, 1 find it unsafe to uphold the appellant's conviction, which is hereby quashed togeth r with the sentence0 He should be forth- with released if h is not otherwise lawfully hold. Delivered in open court this da.y of August, 1977. P.M. JONATHAN, J U DGE PNJ/GK}(