19770106 TZHC Dodoma

/$ 711 IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 251 OF 1973 C/F CRIMINAL APPEAL NO0 28 OF 1975 ORIGINAL CRIMINALCASE NO0 133 OF 1973 OF THE DISTRICT COURT OF DOMA DISTRICT AT DODOMA BEFORE NBSORO AHMED APPELLANT VERSUS - THE REPUBLIC .......................... RESPONDENT CUARGE: Robbery with violence c/ss 285 and 286 of the Penal Code0 JUDGMENT MWESIUMO, J. • On 14th July, 1973, beforeL. A. L. Mgonja, district magistrate, at Dodoma district court, three fellows, namely, Nassoro s/o Ahamed, Habibu s/o Rashid and Cyprian s/o John were found guilty and convicte - of robbery with violence contrary to sections 285 and 286 of the Pena. Code0 The 1st and the 3rd accused persons were sentenced each to seven years imprisonment pursuant to the Minimum Sentences Act No. 1 of 1972 who but the 2nd accused person/was only 15 years old and therefore a juvc:. was sentenced to only 12 strokes of the cane. Aggrieved by that decision Nassoro Ahmed and Cyprian slo John now appeal to this court vide Dodoma High Court Criminal Appeal Nos. 25 of 1973 and 28 of 1975 respectively which for the purpose of uniformit - and simplicity, will be delt with as consolidated appeals because they emerge from the same incident and on the same facts. The facts of the case as amply proved before the court below are simple and straight forward. On the night of 15/16th February, 1973 at about 2.00 a.m. Martha d/o Mpachila (PW1) was walking from Dodoma Hotel towards Makole in the company of her fiance one Sefu s/o Rajab (PW2) and Asha d/o Wazjrj (Pw3) with uhom she had attended a dance at the said Dodoma Hotel. As they were passing through the Railway station where there was ample light they saw the three accused persons and some other people fol?lowing them. The complainant Martha and the other witnesses recognized the thc - accused persons. Shortly thereafter these people surrounded them arid t 1st accused (Nassoro Ahmad) confronted Marth and grabbed off a Lucina . .. .2 - 2 - wrist watch she was wearing around her wrist0 In the course of that robbery the 1st accused and those others assaulted Martha and generz.J. ambushed the whole group which was formed by Martha's companions0 On 16/2/73 the 1st and 3rd accused petsons were arrested at the market while selling, the watch0 The only question that had to be seriously considered and. answered by the tiral court was one of identification of the appellants as people who were among those gangsterd and its determination rested squarely on the question of credibility of the witnesses who appeared and testified before the tr:. court. The 1st appellant was well known to PW.1 and LW.2 who indeed reported to police by nEntioning this 1st appellant by naim as one of the gangsters. As regards the 2nd appellant (original 3rd accuse: and the juvenile (original 2nd accused) who has not appealed the witn esses identified them very clearly with the help of the street electric light though admittedly they did not know them by names lik: the 1st appellant0 Only a day after the said violent robbery were the appellants selling that very watch at the market0 The witnesses identified tha: watch to be the one which Martha had beenwearing and which had been forcibly'taken away from her wrist the previous night. The learned trial district magistrate believed the evidence of those prosecution witnesses. In their memoranda of appeals both appellants raise nothing new in complaint or defence except recapitulating factual issues which in my view 2 were correctly and exhaustively sorted out by the trial court. The 1st apuellant alleges a frame up suggestively because the witnesses envy him for attending dances and film shows. In the event, as did the trial court, I dismiss. the stories advancc by the appellants as packs of obvious, blantant and naked lies. Consequent upon that their appeals against convictions are hereby dismissed and as regards sentences those imposed on them were the very mandatory minimum under the law. This then results in dismissals of their appeals in their entiries0 Delivered in open court at Dodoma this 6th day of January, 1977. cjLc A- E. A. Mwesiumo JUDGE For appellants: Absent and unrepresented. For respondent (Republic): Mr. V. K. D. Lyimo, State Attorney.