19770413 TZHC Mwanza

A/C - 4j- ~ ~ - Iui 1 hIGIi C0JRT OF TANZ.NIA AT 1WA1ZA LThTFLL' J1PI3DICO.Sf HIGH .COU.T CRIhINAL APPEAL NO.23 OF 1977 (Original Cri:ina1 Case No.49 of 1976 of the District Court of Geita District • at -eita 1)efore.ii41'. Bakari, Esq., District Magistrate) 4lSLiBA EULOGcJL 0 0 ., APPELLANT versus THERBPUBJ.IC.......a o....o 0000...o. RESPONDENT J U D.G E ME NT • LILA, J., The 'apellant was convicted of the offence of robbe'y with vio] xce' for which: he was' charged 1 imdesection 285 a nd 286 of the Penal CodeY 'He was sentehc'ed to seven years imprisoiment. This appeal is agaihst G1Iat decision. The main issue in this arpeal is the identification of the pjeiif. Accódin t o : tlie rosecutionritnesseS PJ2 ElI FW3' 'their hohse-'coim-shop was raided by a gang of about 30 persöhs diring the night di 5 .2.1976. After breaking through the doors, some members of this tang entered th'house 'and after threatening the occupants and actually assaulting P!2, thJclearë'd thoshbp of its contents. The two witnesses could not identify any member of this gang except the' appellant because they knew him as he is a resident of the same village. P112 said that he saw the appellant among the 30 robbers and that it is he who assaulted him. PW3 said that she saw"thë appellant when he entered her room where the lamp wa 1et.ourning because she was nursing ababy. 'This was. really the only evidence which linked the appellant to this offence, for when Police visited the appellant's house the following morning and conducted a search, nothing was found. The appellant denied these allegations. He said that he could not have taken part in this robbery as at the time it took place he was not in the village, he was in a neigh- bouring village at Nisiri where he had taken his sick child for treatmont by what has been referred to as a witch doctor. -, -2- In fact that is whore h hThS arr uctod is the two villages are according to t'.s.•.svidonce, ad acort, I agree with tb.ci 't.al •iagiatre:be. tint i° was nothing impossible for 'the apT;ellLant i': O1fl :h'oa :ccrj \Tjl1af€. back to his village and cou!:Li -1lng this offence, hut I think that there wer cons ore. 10 dtiti; rcnarJing the appellant s lnvoIvcmont th:L offence, It' isnot known bow large the shop room is but doubt whether it is spaceous enough to ffloi free ieovcecr±i of ur to 30 persons as to enable one of thea to ho ocily od:mtefod oven witt"out the confusion and itrrr en0rnted by" those bandits, lecondly W2 gave no explanation as to why 1:1.0 did not r:.n'hion the appellant to the noiJ1.hotlrd dunic;' t1'.o same niht. If he had, done so, i. am sure neighbours would have 'traced him, and when finally this witness earn round to mentioning. the appellant, ho waa foneadwitli nothing on iDeing sear chad. Mrs., atovu appeared on heJ.aif of tile Re ublic did not support he conviction and for the above reasons, I agree with this assessment. ccodna'y, is aiel succeeds the conviction is quashea one I eilcaoc ci acver aacs sc sido The anpullant should be sot free immediately unless he is otherwise lawfully held. DeUoicd in, Court t 171Janza 3tJi do of 1977. ':• ". ' . .