19770613 TZHC Arusha

-- IN THE HIGH CONP OF f 1ZANIi AT AiIEJHA APPELLATE JISDICTiOIT HIGH COUHT CRIMINAl' APPLAL No. 416 OP 1974 C/P CR APP • NO. 417/74 9 23/75 . (Oiina1 Cininal case No. 30 of 1974 of the District .Cor . ti of Hananc, District at Baliati). G.uDUTfE @ BDnLi.H BuRL LPELLLNT versus T) DTTDT T(1 .- . . J_i.LJ.J .LLLJ.... UL).U_LJ • . o . oo • 0 0 • o • • • • • • • • • • . . . • . . . ijhL - ) J.}.ji.1 JUDGi\IIT JONATHAN,. J. -. The petitions of GHLDW/E alies LBDULI BURL, CHAIRO I1ICHLEL and ALLI R;J.:ADNANI, nay be consolidated into one appeal and Iretain their descriptions as they. appeared in the.district. court. There, they weo Oonviçt.od on . joint char(o of robbery with violencC and each diion the raininie. sontence .. . . The undisputed facts of the case show that on the relevant fli:gIlt four poople or so broke into the shop of P.\7.1 the •conplainant woman and stole cash and shop oos of a very considerable value.. The coa.p1ainant was sleopind in a rooia next to the shop. There was a doorway in between those two roons. In theshop was P..\7.2 the couplainaht yourior brother sloopini,. The thieves seen to have first broken intb the court . yard bofor broakind the roar door of the, prenises wiich opened into the shop s next to which was the coieplainant' bedroon. They soon to have used o vcr' ucovy obono to break the back door of that shop. The ban did net hçweycr awaken the witnesso.. They sei5 to hve 'okon up to finJ hc culprits mci e but after they - had already stolen nest of the thinks and takun thou outside. Accorjink to P.Wl sho woko up to find th li:ht of the fioon shinind in her ron throukh the, shop and the doorway. She walkod. - to the shop to find a tall nan arreod uith a pailka stanclind by POW.2 and AlIT RnDnJI the 3rd accused howemnk s. club and enterine, •th.e shop through the back door. That coons to avc fri 1çhtened her imeonsoly and she quickly withdroe to roori. The 3rd a.cusod, she same, i;n:on stood kuare at the doorway leadmnk to her rooie ohmic the let aic 2nd accused ransackoc the shop and drained it of its. norchandizo thror'h the beck doorG It appears there was . a leap burnink in the shop which she le.in.:d enollod her to recodnizd the iwcused porrona. TJlti:eOtly she sid., as she saw the 3rd accused and the tell paa bearer walk into her roori she screauied for holp and P.Y.2 upon heariuk this braved it out and jumped on the tall nan and drabbod the pence fron nie. The 2nd accused then rebuked the other accused in toy wore beind too hesitant and Gat they sheald hove killed the conplainnts. 5.'2 The neighbours - 2 - The ncihbours in reeponso to th a1an soon arrived tJ:iero and the robbers oscajcd throueh the lack door and disapcarod after breaking throufh the fence at the back.. The account of P.7.2 broadly supeortedthà foreoin. He had aparently woken u -p to find tho:ana bearer standinC,beside his bed undoubtdl o onsur. ti t no di not intorforo iLh their nisslon. Ho thenhcar this n.n order the 1st nJ 2nd acou.od to nove into 2.i.l's bedroon, The two accused dii as ordered. It will however be recalled that p.7.1 sid the tall nanand .tha.3rd accused wotho.onOs who novod into her roan. 71 .7.2 could not ,staid that opecial1y fier he hoard the scroacis of his sisto' and he then juciped. on the a - n in and raljbec the weapon. Th thus tLIim walked away as the ncithbours wre at isrin in. iese was P. T 4. Tney fol1ocd the invadrs but ei -Li one oxcoptien they all escaped Thot on /ae tie 3rd occued who was found o.yoru. bh £cncsoLe 1-0 paces ±.Lon th. house. He had sustained a broken lcd wh]o nakin the escape. Ho ' a apprennL d and in the course of bcin. intcrrog Gd b the coplo nts anc hoir neiJbours ho not Only confesd to Lh coaiseion of thL ofionco but alas na ed unt. obnors, includin the ls and 2nd acus.a. He i/os n h, ,,,n r_7L u d :vr to nc Pa]. ice The u/O accus d se to have b n looked for in vin inail obout a iionth later ;1aon they were arrested in a distant rillatu at the.. house of. the sister of the 2nd accused. The Police after the 1st and 2nd accused i ero arrested held an identification par-ado. The tiio accused wqhl.d however not IDe on it syin that they were known to P.7.1 the would-be' 'identifior As will be shown pros ntly in this . jud. -iont the nattor of idpntiicati,on is crucial. . . Both the let and 2nd accused denied any connection with the. .incident and the forner also put up an alibi in that on the relevant I njfht hewas at hone. The 3rd accused in his turn testifiodthat he was that nijrb returiaind hone threafh the vi'1lao of the car plainants .won he was apprehended on an a1leration th:.t he was the -biie. Thor beat hin up and he was forced to attchpt an escape. That':dj no succeed as he broke his le after it was trapsdd in a ditch.. .-.. As e:.rds the conviction of tie 3rd accused there can be no doubt that it was richly, deserved. For, apart fraa the evidpnc- of .aiadF.7.2. that they. identi Lid hin he was caudht in TbhO.- .- precincts . of .th prenisos whore he lay with a bronin log sustainad in the coarse of running f.ron the villaors. , ./3 Tharo vias also - - d. —3— There was also his own confession to then. ifl the face of such evidence I ausatisfieci the defence that he wds walkin hone when he was catl.ht7as riat1y rejected and the OflVjct1Ofl • reached. AccrcLiniy, the.. peal of ALLI R:J:7hliAl'ii is dismissed in its entirety. - -: Tnini now to the evidence i1eplic .tin the 1st and 2nd • accused it i . nec shry to assess the reliability of -tahcvi4onco • of PVTi and Iv.i1.2 :fl thor claimed to have identified them. During the tridi it was a lve issue whether these two witnesses knew the wo ac..ueed as tha latter contended. Both the witnesses were clear til3t t.ey had never soon the accused previously to the relevant nigh.t. ainst this, however, it is to be noted that P.V1.1 in her report to P.V1.5 Constable CHARLES she 35idshO kncw cach accUsed, both by nacio and apparanco while PW.4 • in his evidence seid tha.t,as regards the 2nd accused,he had worked for the cba.p1einants. It would sean,thersforothat the accused were ate11 known to the witnesses and that t7±c othp1ainants'worebéii untruthful about this. It may than be asked: why tell such a lie? The anmor may he left to spoculatic but it is a warning I think thIi the ",vii.1ence of those witnesses on the matter of idontification should ho received with groat oaution. Now, if t :ey identified the two accused as they said they must undoubtedly havo told the neighbours so It however coons clear from the evidence of F...4 that t .ey did not tell them the accused had been among the robhers Indeed this seems confirmed by 11 .V7.2 1 s own evidence that they interrogated the 3rd .ccused on the identity of the oilier culprits, whereupon ho iontionod the two accused, hence F.7,1 in turn later telling 7.5 she knew them. The circumstenccs so far as I can gather from the evidence 0f these two witnesses wore generally unfavourable for them ro identify the two culprits who wore specifically assigned to ransacking the snop and ferrying the goods. Both the 3rd accused and the tall panga man were not persono ncwn to the witnesses and they ini:i not have been unduly preoccupied with whether or not the witnesses recognized them. The accused being, en the other hand, perois known to thou could have had every reason to ensui'o the witnesses did net identify thom. For considerations as these it seems to no that the witnesses nay not after all have been clear about the identity of the two unarmed wefl - .../4 The 3rd accused - 4- The 3rd accused a hvo intion ti t jo accused but it would be 11po$sJiJ1c to con- ict 'erol çï evidence especially as the 3rd accucod in cvi.drico has denial sayin8 so. Accc.r ilj, -t i cnctione of 1t and 2nd accused re hero1j set aside to ;hher ii.th .tho.'sont..ences. They. should forthwilth be released froa cuatocJy. .: . Delivered in 'court this .13t day of 'J@,. 1977.': P.• j • JOTATiiT . ) JUDGE. I