nze pelezi vs republic 1977 tzhc 4 28 march 1977

IN THE HIGH COURT OF TANZANIA' AT TA3CR;. APPELLATE JURISDICTION ■ (T^bora Registry) (HC) CRIMINAL APPEAL NO. 136 OF 1975 (C/F. &r. App. t k l of 1975) ORIGINAL CRIMINAL CASE NO. 107 OF 1975 ..OF THE DISTRICT COURT OF.NSEGA DISTRICT AT NZEGA Before: C. A. C. Odcng^, Esq., D/Magistrate. NZE PELEZI ...... i ... V .... .'. I......APPELLANT' versus THE REPUBLIC r.. .'. .. ... ............... RESPONDENT CH AR G E : 1st C t : Robbery with viclence .c/s -285 &>286 of F.C. 2nd C t : Receiving stclen property c/s 31*1(1) cf F.C. SISYA, J : The two appellants, Simcn lyambaniswa and Nzen alias Noa Pelezi, who appeared at.the trial a^ first and seccnd■accused, respectively, andfwh< m I shall heroafter continue tc call them so, i.e. fir3t and second accused,- were convicted in thb District Court, Nzega, of;'robbery with viclence.- The second' accused alone was alse charged with and convicted, on a second count of Receiving stolen property contrary to Section 311 (1) of the r'enal Code. On the robbery count the accused wcr.o each sentenced tc the statutory mininrum of seven years imprisonment. ^n the second count the scccnd accused wa3 sentenced to a further period cf three y 'd.ts imprisonment with an order, however, that the sentences should ran concurrently. Both accused have appealed to this court and their appeals are c onsol’ idated. * T * l It was not' disputed at the .trial that on the evening of **/*t/73 the dwelling house CUM shop belonging t o the complainant was invaded by armed gangsters who, after using personal viclence tc the occupants cf the building in qiio&ti' n as well as to their neighbours as a result of which one person died, made awsy with vori us articles r>f*merchandise vrAich pairs cf shcrt trousers, one net, two bed sheets, two pillow cases, one brazier, fcur pairs cf sandals, four tablets cf marine soap, five underwears and cne underskirt. They also made away with seme cash* The total value cf the articles stolen ran tc Shs* 20,000/=. Evidence was given at the trial by the complainantin the case, one-NA5SQR0 A3DALLAH (F»J*l) to the effect that on the fateful evening at about 9*00 p»m* he was sleeping in his rcotn' in a building in which he also owns and rans a shop* what actually happened is nc t vary clear but according tc Nasscro he was awakened fr^.m sleep by noises made* by his sister-in-law, -cine-Kashindye who, incidentally did nc.t ..give evidence-a-t-the' trial, and some children* The said noises were actually;an.alarm which the said Kashindye and the children were raising* Nasscro jumped cu t ©f his bed and intended tc get cuf cf his room. As he did sc he came into a cr nfr- ntoti< n with one cf the intruders who had a gun. It seems at that time there was pandemonium in the house* With the help of the light prcvided by a lanp which was then on in the house Nassorc saw the gangster with the gun, whrm he i*e* Nassorc, apparently knew as he Nassorc called him, i.e. the gangster, Surambaya as his name, fire the gun at his, i.e. Nassorc'S, mother* At one© Nassorc got hold cf the gun but nevertheless a shot very narrowly missed hitting her: It nevertheless cut open hor skin on the hoa d* As the struggle for the gun ccntinuoc^ the first accusod caac forward with a bush knife (panga) and slashed Nassorc with it on the left side of his stomach* While so doing the first accused was saying that Nasscro should be killed lest he identified them later. The f irst accused then raised his "panga11 again and this time he slashed Nassorc with it on the head. He, i.e. Nasscro, let go the guri and fell on the floor* Meanwhile he saw the other g;insters busy collecting and tying up articles of merchandise in the shep. There­ after Nassorc lost consciousness• He regained it while he was admitted in the District Government Hospital, Nzoga* Another eye witness, MARIAM ABDALLAH (PV7.2) testified to the effect that on the material evening between 9 «0 0 p*m* and 1 0 *0 0 p.m. while she was awake in her room she heard a gun being fired at the back doer of the house where she and her brother, the complainant, their mother and others were* ufhen '’ o *?ont ~nd 1- ki rt i/» hoc?': d- r of r“.c came in Marian saw the intruders ran out cf tho hcuso. Later thinking th:t tho thugs had ran away. she returnocl into the house. Sho found Nassorc (PV/.l) and her. mrth«r both of whom she, Mariam, netic.ec) .had been b.aclly injured* Suddenly tho firing started again. Marian and e thers who had ontorod •' the house began to scramble ,for the door0 She net tho savages at the door. The one.with the gun fired at her hut fortunately for her the shots, missed her. They, however, sh< t tho person .. who was immediately behind her and whc had c- me in response to the; alarm. The s air’ person fell cn the floor and died shortly afterwards* The first accused then struck her w^th - - a panga on the hea *d anc). she fell on top of the dead person* The thugs ordered hpr t<: get". M:.riam pulled herself together and got up. The intruder with the gun then fired at her and this time she was hi t.cru her left arm. She fell down again# . Nevertheless she struggled and £ot up. She was marched into the shcp. While there the:intruders..continued to assault her while others were .pusy collecting things. From her. rocm:the. . c invaders collected 3 radio grar;, one iresquite net and two bod sheets, .labile in the shop Mariam saw-the second accused collect articles cf merchandise.which included khangas, viteng^, textile material .etc. etc. from the shelves and put them in sacks. Mer*nwhil,e the neighbours who h;-r come in rosp- nse to the - 1 .rrr r~n back in fea^- In the course of the invasion the first accused suggested . to his companions that they should kill the complainant for fear that he weul»',identify them. ; ..It seens on hearing tl:is the complainant’s mother took out cash w M c h , according-to : Mariam amounted to more than Shs ^16 *'000/= and handed it ’. • ever tc the intruders while begging that they should not kill PiJ.l, the complainant«r Eventually, Mariam saw the intruders carry the loot cn their shoulders and go out of the shop. A report was sent to the Police whereupon one, Inspector Cornet (PW.4) and ASP. Frank .Phillemr n Gamaya (P14.6) took up the investigation of the case. They set off for the scene of the alleged crime at Mbogwe Village on 5/^/73 at ab~ut 7.* 30 a.m. While they were cn t h ^ w a y they received some information as a result of which they, i.e. the Fclicei. Officers, changed their route. They follower! the .read..lysa^ing tc Tabe.rac When t" :.'v 7T'T''*.v t ‘*0' * \ •■'*■0 v"" ~ . 11 .* r; - k accused's house they saw frur persons sitting eutsido the said hcuse. Two of these were identified to be the first and second accused persons* However, cn seeing the Police Officers approach the four persons took tc their heels* The Police Officers tried to give chase while firing in the air. The first accused and two ethers continued tc ran away very fast and they managed tc escape. The second accused*s attempt tc escape was, however short lived because ho was apprehended almost immediately by the Police Officers. Out-* sid,^ the first accused's house were throe bicycles. The two i Police Officers, PVi.^ and P^.6 , then began to interrogate the second accused* In the course of the s aid interrogation the second accused led the lice Officer to a place in the bush about fifteen paces away frcm the hcuse of the first accused. They found three sacks which were full. When opened the three sacks were found tc contain five bales < f cotton material, two bales of American khaki cloth, one bale of khaki material, one bale of ,fJinjalf material, fifi^y-nine pairs of vitenge, twenty^six pairs c;f khanga, eight pairs of shorts, four pairs of long trcusers, seven shirts, f< urteen nappiest thirty-fcur handkerchiefs, two bed sheets, five underwears, one underskirt, two pillow covers, cne brazier, four tablets of Marine toilet soap, two pairs of sandals, cne masquite net, cne radiogram, one Philips radio and one clock. The radio­ gram was pr< duced in c^ urt and marked Exh* "A” , The next cf the articles were als. produced as exhibits and they were collectively marked Exh. ”B M* The seccnd accused’s pockets were searched and cash Shs*2l8/35 were found and recovered therefrom. This was also produced and marked Exh. nC n . Thereafter the Police Officers searched the hcuse of the first accused. They found •nd seized a bicycle to which was tied a shot gun* Cn checking they found that it was loaded with cne live cartridge. The frur bicycles and the gun together with its cartridge were, however, net produced as exhibits at the trial. The seccnd accused was at first charged with murder. Meanwhile the search fcr the first accused and the others continued* On 7/10/73 acting on information received, one Inspector Mustafa Selemani Lu^inga (P«*5) proc##ded to the remand prison, Tab ra, where the first accused was then in crnnccti1'n vitl; s> r;' • tl;.*.r rrttor. He, first accuse-’ z?;. z n c r*‘r,. od ,1.i . The first accuscd-in his sworn str.terent in defonco t-Id tho trial crurt that';'c:ft 5 /^ /7 3 at about 2*30 p.m. whxlo ho was at nis hcusc at Itvrelyanguku 'village , Hkiniziwa '•rea, repairing a bicycle 'he was visited by three persens. Each one cf ,tho three visitors had a bicycle and to one cf the bicycles', which belonged tc: cne Surambaya whc was loader cf the visiters and a friend of the elder brother cf tho first accused, was tied a gun. Cne of the said three visitors was the second accused* The said Surambaya and the third vistcr did not appear in court. However dri their arrival tho first accused received them and they' all sat outside the house. The visitors then told him that they were on their way from Tinde in Shinyanga District and that they had deviated only yo have food at his, i.e. first accused1s, hi use as directed by their friend, presumably the said elder brother cf the first accused* Cne of the visitors asked him, first accused, what was wrong with his bicycle and offered to repair it for i him. At tho s.on;e;tirne he, first accused, tried to borrow one of the bicycles brought by the visiters sc th^t ho could go tc his neighbour to fetch a bag. The vis tcrs refused saying they feared that he might' delay. The first accused then went for the said bag on foct. rie , however, nissed tho bag because his neighbour had gone to a funeral. tried another neighbour cf his but he too had gone to' the same funeral. B/ventually lie returned to his h^usc. On Iiis arrival he found his wives and children outside ;.nd they were crying. Mis personal belongings had been taken from the h use and , scattered outside. His wives then told him that one cf his 1 visitors h^d been a r r e s t e d because they she t a rran to death from where they cane and the other two had escaped. They further told him that the Police had'also seized f ur bicycles including his own and sc me luggage which was recovered from the bush. His wives Expressed ignorance of the person(s) who put the saic luggage in the bush. On hearing' this the first accused went to make : urther enquiries from his leader cf ten houses. However the saic1 leader of ten houses oxpressed ignorance cf what had taken place except that he heard two gun shets which were fired from the direction of his, i.e. first accused’s* h’ cuse and he, i.e. the leader of ten h. usos, said that he thought these were fired by hunters since the surrc uncling nrer was- all bus h. It soens the first r ccuso1'1 He fcunc11 her nnc^ u p r n seeing him she tried tc run away whorjupon hy assaulted her thereby causing- her an ingury on the head. This landed him in the remand prisen, Tabe r a . On 2/5/73 a Fcliceman from Nzega arrived and tol*' him that he, first accused, hr.r1 br ?ian into a shop and rr.urdered a person. Ko, first accused, was then charged j< intly vith the seccnd accused whom he said he did n< t know. The learned trial Magistrate ccranendably gave the seccnd. accused an opportunity to cross-examine the first accused. In the course of the said cr< ss-exanrinatic n the first accused told the trial court thrt the seccnd accused was one of the three visitors whc had come to his hcuse and aske^ for food. That was the first time for him, i.e. first accused, tc see the socon- accused. The first accused went cn tc say that the leader of the "delegation” was one Ramadhani Suramhaya to whose bicycle was ticid a gun. When cross-examined by tho learned Public Prosecutor the first accused denied that he ever lived at Kbagwearea. According to him, i.e. first ccused,' ho was born and bred at Ugagarefcia Uycgu village which is separated by two villages from Kbc gwe. The first accused, however, added that lie, nevertheless, used to visit a bar in Kbcgwe area often for local liqucr and in this c< nnecticn he conceded that many people at Mbongwe knew him. Cross-esamined further tho first accused is recorded to have said and I qu< te from the record of proceedings in the trial ccurt:- ”When I shifted from Ugegererna Uyogu village to Nkinisiwa I left only one shep owned by Malombela not of /»rabs. I have never seen PVJ.l but I was tc Id by rcy elder brother that he opened a shop at libongwe also that ho had accused my young brother for stealing a bicycle. FW.l told lies in court that I used to meet him. It was net me whc stole the bicycle said by F “ .l but my younger brother (sic) who resembles me very much ••••••••••11 When questioned by the trial magistrate the first accused said that he shifted tc Nkiniziwa fr< m Ugerorema Uyogu in 1959* He, first accuso.', also said th? t he and his brothers resemble each other very closely. His elder brcther lives at Ngulu village about three miles from Mbongwe and ho, first accused,suggested that it might have been rnoof Iiis brothers who went and committed thealleged offence. The second accused in his sworn statement in oefence t I*' tho t.riu.1 court that cn 5/^/73 loft Tabc ra by 'u’.s 'r* r\t TTT’ir?.l: v*.T.It".o Thereafter ha began tc make hruse tr h uso enquiry* There wos it maifce in tho first throe houses w ;ich'he Visistod# ' jtii the* fourth houee ho found and bought two tins r£ mc'ifce* Siiitfo .5 ■.•*-■ . ... .' .. <• ;, ; f<fs, his target was two sp.cks of naise hv left th e"tWr tins ' i t hfiAifcfej in the fi-Me hcuse fcr collbtfti'h Ko^nWftilo’ fro ttontitfitied to lc ok fcr sc my mc.ro tnaioo# The ieccnc1 accusod went on ic stay ihH: he then e ame tc a he use wlierfe he frUiid two •• i,• • J;. ,. .. .. ;• , wemeni Thnir mc.n vrnat not there nrr die? he, i«e* second Qdcuse(,1 knew whc he Was* The Said two Wr.meil whctn soCcnd accuse;1 said he Could no longer identify tc id him tc wait ouifride their h< use« It seed's hfe did cam tc ldi However< at ■ft 4 00 p*m> /there ^ suddenly, appeared P<^li6«|<neti f fern behind the house* The s-iid Policemen then arrested him together with the two wcuen • When ^r ,ikl-r:3r ~l A.*.* , * '.JL - nrrest ne of thvj non slapped him in tho fr.co r*nd this m^de hi* temporarily blind* Nevertheless, the Policemen alleged the.t he* i»e# second accused, hid killed a person and demanded that he should sIicV them his cc mpenii ns« He denied that ho hr.d any cc mpr.niens# t'her^fter, he was taken to gather with his bicycle to tho Police Static n, Naega, where he was chrrgod with inurder# When ke was searched Shs*2l8/35 were fiund c* and soizod fro m him* This mcnoy was fcr buying n&ize« the learned trial magistrate! quite correctly^ gave th-3 a c^i ppcrtunity tc cr^ss**examine the soccnd accused c nd he did so* D” n s a i c ! cxv-smn* QSaninsiti .n the sec .r*'4 srid rhrl the raaiaj.e wnicL waft lev ki«~ " • ^cr domestic eo»e«rnpti **et socrnd categc rically denied any knowledge c f tho first accused* **© also expressed i^nc ranee <■f the fnet thrt the he use at which he, seo< nd accuse*-'% was arrested belonrs to ^irst accuscdo Cross—examine'* further the secc »«L Mtus^cl tc Id the trial Ci urt th?*t r.nycne who tc alleged in c urt tJhat he, second acou»«r{ was at the h^ttte of th© first accused in the company of other p*» ple gave f also cfross- axairine--1 yet further by the first the second accusod. went on tc sa y anr* I quc to from the r^crcl oi J^roceodijigs ;«* ttFirst accused w-'.s net repririn^ a bicycle at hi» homo hut I did net s*.o hixa tctally* X vet ®<-t rue cf tho guests cf tho first accused vhrlcrk^d ft r £ od» Fijrg’t accused has net seen me bofcre this «^.*e *<- we met in r ,rarnd prise n N;; I '”id net show thc3 Pclicemcn tho When pr.css-exar.in0d by the loarned i-ublic frcsocutcr the sect nr! accused went :n tc. say and I quote t- |f' *•'**•*•«•••••*« F i r s t accused i$ tjie c wner c f- tfco hem©, where X was arre?tec’ sc he i# pr.**,.n c< n^artwc! with t h o bbory in questi< n. I haV$ b**i*n arrestud cut r.f no reason only cnee in this Qaso. J. h&ve frai^d lies cn pocple nany times if' second: accused called twe witnesses on his $id~i The $i.jrst vas, cno DQLQ, S L W 1..R ( DV, y ) who testified tc tfc& effect that on k/k/73 at abcut 8*00 p*m* he met the secano accuaed in a bar at Tabc ra» The latter then asked him if there was ra^ize for sclo in Nzega District*. Ho replied thr.t there was maize in the villaces but ho did n t specify any particular village* On the following day i#e* 5*^*73» ho and tho seion.d accused bearded the some bus which was destined tc Shinyrngo. Vihen the bus arrived at Nl:ii%iziwa the s ocor,y accused get dewn together with his bicyfle and a sack which he brought with him fcr the purpose cf buying maize* In an answer tc n quoeti n put tc him by tho learned trial Magistrate Dole said that since 5/^/7J the next time he saw the socc nd accused was <*n 16/6/73 in N«oga Prison* The second witness whom the second accused called is KaPEHSE S’vr/SYA (DW.4b), a peasant at Puge area, Nzega District* This witness denied ever seeing second accused ecme to his, i.e. Kapenbo1s , he.use in search cf incize. lie also denied any knowledge • :? both accused persons* when questioned by tho trial ^g is t r a t e Kapombe to;Id the tricl ccurt th-_t he was serving prise 11 sentence at the time he gave evidence for stealing clc thos* Ho, lLapoinbe, added that tho second accuser knew his name whon the same was called cut in prise n. The first accused had *riginally expressed a desire to call three witnesses. However, after two cf thom hart given their evidence he closed his case. His first witness was his leader of ton h-uses, one LUTEJ/* S^IDA (DW*5)* Ke testified tc- the effect that he was nr t present Then the Policemen arrived ct the house of the f. irst accused. Later, however, he saw $hcfi with clothes which they alleged to have t air:on from. the house of first accused; When <juesticned by the second accused this witness, Luteja, said, that he saw the second a ccusod under the custody cf the Police but ho did n-'-t witnos* his arrest ur *r ■"*7 - “■* ~ ■■ ■**“ t \— ti ^ .u".'t .r* [.hat en 5A /7 3 he saw the Policemen go to the ht use of first accused but added tb't they clic1 not, howevwr, trill: tc him. Later he saw then with three sacks full cf clothes and the second accuser was under their custody. They, i.e. the Policemen, told hire thrt they had arrested the secrnc’ accused but others had escaped ant1 ran away. He, Luteja, did not see the first accused on that day and he had not seen him for ir.any days. The next time he saw the first accused was when the ^Latter was under-arresto Luteja also tc Id the trial court that the Policemen kept four bicycles which they alleged to oblong to the persons who ran away in his house as loader of ten houseso In answer tc a question put to him by the trial 1'agistrate Luteja said that he had* lived in Nkiniziwa village for eight years. He denied that the first accused shifted in t hc.t village in 1959 but much later thnn that* The second witness on the side cf the first accused was i- . his wife, MILEK3E KIJILE (D¥.6 )« Her ovidence was a mere reiteration cf the testimony of the i irst r ccused. When questioned by the second accused*, fcilembe said aiid I quote:- MI usually pay visits tc first accused in remand prison where we usually talk in •:* private rc'.in without a Policeman tr anybody but only two people ••••••••••"• She, however, d.erir.-id that first accused told h e r •what to* ' say in court. She went on t o ‘say thr-t cne of the three visitors had a gun tied to his bicycle. Questioned furthor by the second accused fcilenbe told the*court that it was the second accused who led the Police to where the sacks containing the clothes were after tne Police had beaten him one! herself up. Sh?i, however, conceded thrit she could net be happy if her husband, the first accused, was imprisoned. * During cross-examinati n by the learned I-ublic Prosecutor Kilensbe tr id the trial court that at the time she gave evidence she had been married to the first accused for fifteen years. They, at first,' cohabitee' at Ugererema Kbengwo area before they shift d to Nkiniziwa. *.t the time she gave evidence five years had passed since they shifted to Nkiniziwa. She never visited Kbc \gwe and therefore, she did not knew that there wore Arabs there. According to. hileobe it took a very short time for the Pc licemcn .-*nd soconcl accused tc ' resemble each ether very closely except, accrrr’ing to her, the said brr thcrs are taller than himself. She then also made the sug'gesti n th.it it was first accused's older brother who stclo frcrr, Pvi.l an " i?vj.2 but the witnesses mistakenly identifier1 first accused. In answer tc questi-ns put to har by the trial Magistrate Milembe denied thrt she and first accused mcved in Itwelyanguku village Nkiniziwa area in 1959• According to her as iato as 1961 she and first accused were living in Nyambewa village in Geita District. She also denied that second accused asked fcr saize at her house. The learned trial Magistrate found both first and second accused, guilty as charged cn tho first, i.e. robbery, count and he convicted then accordingly. ne als- found tho second accused alone guilty cn the sec.nd, i.e. receiving, c<unt and he convicted him accordingly. In his petition of appeal the first accused raises no new substantive ground e.f appeal except protestations of his innocence* The second accused toe makes prctestati ns of his innocence in his petition cf appeal* However, in a dditicn to this he contends -that he could n- t be convicted^ cf robbery and receiving stolen property at the same time* It is trite procedure that the first appeal is by way of re-hearing. The first appellate Court dees not merely have to scrutinise the evidence in order tc see if there was seme evidence to support th«? lower court’s findings and conclu­ sions. Whr.t the first appellate Court is required to do is tc make its own findings and draw its own c< nclusicns from tho evidence cn r e c o r ”. Indeed in so doing the first appellate court must be contirus by making allowance fcr the fact that the trial court has had the advantage cf hearing and seeing the witnesses. Cases in which this was the r;xisi( n arc legion* As I pointed cut earlier there was no dispute at tho trial of the fact th t on the evening of 4/,t/73 at about 9 •0C I3*rn* the house cum shop of the complainant Pvi.l was invaded by intruders wh<‘ were armed with a gun and ’pangas’* The said intruders lanched a very vicious and savage attack on the occupants of the building in question who included tho complainant himself (FW.l), his sister (PIii*2) and iiis mother who did n't testify at the trial. The said attack was with the gun and pangr - his: at to e k e ' an- , as a rratter cf fact, —' . f - n c :\ 1. I n r n t ’ r n 4• '1 1 :r~ ; : r - li­ tharge sheet and hereinabove. Neither cf the accused disputes this on appeal either- The evidence on this r.spsct of the case was given by Nasscro Abdalla (PV^l) and Mariamu (PVJo2). In the event I am satisfied that the learned trial magistrate was perfectly entitled to f ini? as a fact that a rcbbery with violence had been comniittwd at l-’ ;b;:gwe village on the evening cf Lk/ti/73° Kcwever, the mere fact that it has been established that an offence was committed would net. perse, justify a ccnvicticr against the accused in the dock* It still is incumbent on the Frosecutic n tc prrve with moral, certainly and tc the exclusion cf every real or reasonable doubt thr.t the offence , sc established was perpetrated by the accused ^ersc n(s) i n - the dcck. Only then will a conviction be upheld fcr being;. : sound'in law„ In the instant appeal the only jpo-tarial issue f ,r cleterr.i- naticn is whether'these two accuser persens were *sufficiently identifier’ cc. be seme of the thugs whc staged'the robbery at i'hogwe village cn the material evening. I has been held by this ccurt as well as the ccurt cf appeal for East Africa ‘ ‘ r , ' that where thcuvidence implicating the racGused is entirely based cn identification, such evidence must be "absolutely watertight to justify •conviction" . (See R v» Sebwato .(19.60)- SA* 197^5 Emmanuel Tumbotele v ._R (1 9 6 8 ) K.C.D. l k k ; Wilson 011c v 11X 0D 0 Andrea y R. (1971) K.C.D. l*tl). As regards the identification-of the first accused there is the evidence cf Nassorc, (Pl/.l) pnd Mariamu (PW.2). Both these witnesses were positive in theii' identification cf the first accused whom they said they knew very well long before the incident,, Both F^ol and pi/.S testified that the first ©ccused was his neighbour, at Kbogwe village f or acrr-etiine before he, first -accused, s.hifted to Nkiniziwa. i4e , first accused, used to vist the shop cf FVol quite often. Mariam (PW.2) said the same thing and according tc these witnesses they knew first accused very well. The’first accuse’ in his defence denied that he ever lived in mbogwe village. According tc him he lived at Ugegereir.a Village which was separated by two villages frcm Mbogwe village, Ho, howevert conceded that he used tc frequent Kbcgwe village frr pombe drinking thereby residents ,cf Mbc gvre ‘ used tc see and knew I:?.1"- I' ~-T.v«'r. J-hf ' f rs'z 5s -1'l'sQfiti n t l~rSt jyiv .' According to Luteja who, to my mind, was on in^epom’ont witness in the case without anything tc gain or loso cut cf the proceedings, the first accuse^' was only six pcnths cId in the village ^t the tine cf the incident. It is evident, "therefore, thr:t by claiming to have shifte ■’ to Nkinisiwa in 1959 the first accused lied in open court* The learned trial Magistrate was, therefore, entitled tc disbelieve the first accused on this point. On the other hand Nasscro (P'.’/.l) told the trial court that he and the first accused lived in t h e same v i l l a g e at Mbc gwo for five years and on one I o c c a s i o n he, first accuse^, was involved in an incident at a local liquor bar concerning his, i.e. N a s s t r o ’s, bicycle. This piece of evidence, I held, is relevant for the purpose of establishing prior knowledge cf first accused by Nasscro* In his defence the f irst accused claime d that it w as actually his, first accused's, brother who was involved in the said bicycle incident and that he, i.e. first accused, and his brothers resemble each other very closely* Strange e n g a g h the f i r s t accused who, from my read ing of the proceedings in the lower court, wcu ld appear to bo a fairly knowledgeable person an^ not a raw citizen, never cross- ex amined Nassoro on' this.point. He, first accuse'.1’, did n t questic n Nassor.. o r .Mariarnu on the issue of his h avi ng brothers whcra he c lc scl y resembles eithor. At a n y rate his a l l e g a t i o n ._ was contradicted by his wife, Mirembe, who said that the fi rs t accused*s brothers are taller than himself. Certainly, if the first a c c u s e d and his br thers were exactly alike the b e t t 3 r judge on this point wc.ulcl be his wife or some other thi rd pr*rty or pe rso n and not the f i r s t accuse^ himself* All this saifi a n ’ done Nasscro (PW.l) sai^ that he s a w and identified the first accused w it h the help of a lamp Trhich wa s then on in the builoTing. The first accusedocace w h e n he, Nassoro, held the gun w h i c h was us e d in the robbery. He s l a s h e d him, i.e. Nassorc;, with a panga on his left hand and left si^e of the stomach and finally on the head w h i c h caused Nass c r o to lose consciousness. Nevertheless, by then he had already seen and identified the f i r s t accused. In a ddition tc t h e evidence of Nasscro there is, as aforesaid, the evidence of T^arianru. as distinct from Nasscro i whc appears to have been awakened frcm sleep, K a ri anu sai'f- that s h e was wide avak° whon the intruders first struer’:, * •' ‘ ^ “ • I .. - - h c r w r f t c - r , t h i .... - whc was behind her. The first accused then struck her wi t h a panga cn the hea<’ an i she foil on the porscn vmt ha:’ just been shf. t « Fror; the account <. f Ma ri a m u the first accused must have appeared in front cf her in w h i c h case the two cf thorn were face tc face with each ether. That was an opportunity fcr Kariamu tc sec a n d identify the first accused* She got up but was fired at and shot on the left arm. She fell diown again but she was ordered to rise wh ich she did and marched into the she p. While there the first accused cont inu ed tc strike her w i t h his panga while the others were busy collecting the loot* Ag a i n Ma ri a m u had ample opportunity to see and ide nti fy the first accused. As aforesaid and as Mari amu too pointed cut there was light pr< v i d e d by a lamp in her r o o m and in the shep. The important thing to note here is thnt the first accused was net a stranger in the eyes of Na ss orc and Kariamu* In this connection it may not be impe r t n e n t tc recall that in his testimt ny, during cross- ex am ina tio n by the first accused, Nasscro said th t before he lost his consciousness he heard the first accused tell h i s companions tc kill him, i.e. Nasscro, because he might i d e n t i f y them later* Further, I^ariarnu also s a i d that tho first accused c ont in ued to assault her with a panga while the others were helping themselves to the loct* The said assault wo ul d appear tc have been meaningless other than fc r the purpo se cf k ill in g her., Indeed the first accused hi;d a very good cause for fearing that his identify wo u l d be established unless Nasscro and Mar ia mu were liquidated* Cn my evaluaticn cf the evidence I wo uld net hesitate to find that the evidence of Nassoro and haria mu even if it wore to stand alone, is sufficient to establish the ide ntification of the first accused* The evidence for the Pr os ecu tio n gees on to s h e w that on the following morn ing when the first accused savr the Police a p p r o a c h he took to his heels* If true, then the only re as o n a b l e if not the irresistible inference to be d r a w n f r o m this conduct, in all the circumstances of this case, is th?t the f i r s t accused had a guilty conscious* In his defence the f irs t accused contended that w h e n the F c l i c e m e n a r r i v e d at his h'use he was away tc his neighbours* ho u s e s where he had gene to b orr ow a bag* He, however, left b e h i n d three visit rs one f them being a frien ’ ->f his br thcr the first accused was ont of the robbers who invaded the complainants shop on tho material night. Suffice it to say that for all these reasons and on the evidence on record, like the learned trial Magistrate I am satisfied that the identification of the first accused .• as one of tho robbers was i'ully established. Turning to the second accused, in count one, both Nassoro (PW.l) and Mariamu (PW.2) testified to the-; effect that they saw him, i.e. second accused, among the robbers on tho *r.aterial night. Both PW.l and PW.2 said that they saw second accused take articles of merchandise from the shop and both of them i.e. PW.l and PW.2, added that that was their first time to -, see the second accused. This means that at.the time of the robbery the second accused was a complete, stranger to both PW.l and PVJ.2. None of these two eye witnesses described how he or she identified the seconci accused. Though there was a almp on the events-must have happened quickly and since, as aforesaid, the second accused was a complete stranger to them, circumstances favouring identification roust, therefore, have been difficult. This, to my mind, raises the*, need for Pvj.l and PW.2 to describe the second accused in court: A description of tho second accused's attire at tho material time or any other feature peculiar to him would suffice. In the instant case PW.l said that he could not recall what ’ type of clothes the second accused put on* This court has hold that it is unsafe, to support a conviction on the bore assertions of witnesses that they had recognised or identified the accused. (See Ludoivo s/o Kgshabu v. *R.(1967) K.C.D. 19**; Me da fcza.zi, v R . (1972) H.C.D.206). The second accused raised the defence of <ulibi. Ho dalled a witness, Dolo Shumar (DW.3)i a convict, who testified to the effect that on k/k/73 at £ .0 0 p.m. the second accused was in V. a bar at Tabora. The learned trial Magistrate rcjoctec Dolo1s evidence on the ground that since more th n two years had passed by the time Dolo gave evidence he, Dolo, could not remember the dates with precision. Secondly, Dolo conceded to have met the second accused in rremand prison at Nzega. The learned trial Magistrate had the advantage of seeing and hearing the witnesses in.this case. I have not had such advantage. I cannot therefore say that in disbelieving Dolo he erred. led the Policemen to a place in the bush, fifteen paces away from where all the article's stolen from the complainants shop were recovered* The second accused in his defence told the trial court that he went to the house where'he was arrested to look for some maize for sale. He was alone* To some extent he was supported in this by his witness, Dolo (DW*3)* However, the first accused and his witness, Mirembe (DW*6) gave a different story as narrated hereinabove. Tho accounts given by second accused and Dolo (DW«3) on t h e“one hand and the first accused and Kirembe (DW*6) on the other differs from that given by the two Police Officers, PW.^t and PW.6* The learned trial Magistrate accepted the evidence Of PW.^t and P!;7*6 arid acted upon it. I see :no cause wh y the learned trial Magistrate's decision on this aspect of the case may be faulted* It may not be insignificant to'observe at this juncture that the person whom tho second accused fcallod in order to establish that he, second accused, was looking for maize, Kapembe Sweya (DV7•.**), denied a n y knowledge of him, second accused, and ‘is alleged maize purchasing mission. In his petitiion of appeal the second accused contends that the learned trial magistrate erred in taking into account Kapembe1s evidence because ^apembe is very old and therefore, his capacity to r eraenber things let - lone the day second'accused approached him for maize is doubtful if any* All I can tell the second accused is that Kapembe was a witness who was summoned on his, i.e. second accused's, application and on his, i.e. second'accusers, own- side* The evidence of Pv?*4 and P W .6 to the effect that the second accused led them to a place, where. Exhs. "A" and "B" is relevant and admissible: - See Section 31 of the Evidence, Act,; 1 967* In all the circumstances it can safel’y be inferred that the second accused know the presence of the exhibits where they were found and recovered* These exhibits were stolon in the course of a robbery during the proceeding night* If tho second accused had seen some other person(s) put them, i*e* the exhibits, there or if he had seen or discovered then per chance ho‘ ought to have said so. However, he never said so* Instead he categorically denied any knowledge of the exhibits* This is not true as it is the second accused who gave FvJ.4 and P!7.6 information which led to their discovery. Since tho; socor<<- r.CCWCGii vrn ft n o t r>-f -hTh.- +. -.y»or> r* ^ have ovury reason to believe that it vrere.. so then it follows thr.t the second accused must h;ve possessed and conveyed the exhibits prior to their being deposited. whore lie j second accused, led tho Police later. In view of tho fact thcit a short tiue, less th^n a (fcy, had passed f rorn the tine of their being stolen to the time of their recovery with the cooperation of the second accused.I a r , in all the circumstances, of the firm view that the second accused,was one of the actual- thieves. In the light of this conclusion the defence of alibi raised by the second accused does not raise ^ny reasonable doubt or any at' all- in my mind. It did not raise any doubt in the nind of the trial1magistrate either. It is thus open &o find'th^t the identification of tho second accused by PW.l and P'i.2 has been supported in material particular by independent and credible evidence. In the event, again like the learned trial Magistrate, I an satisfied that the identification of the second accused as cne of the robbers was sufficiently established. . : Turning to the second count, I do not hesitate to say that the appeal on thi's count1 has nerit. Put simply robbery, is stealing with force or violence. There are numerous * decided cases which lay c?own that -u person cannot lay down that a person cannot be convicted of stealing and. receiving tho same thing. The addition of the second count together with the conviction thereoti were,'with respect, ill conceived. The same cannot therefore be allowed to stand. Accordingly tho conviction against second accused in count two is csuashed and the purported sentence passed thereon is set f\s i de . As regards sentence this was -a heinous crime. The accused Hrere members of an armed gang; armed with lethal weapons — a gun and a panga• The undisputed evidence shows that a person died in the course of "the robbery# It would also appear to i*je that it was mere Grace of God that there were not more than ■one death. The complainant, his sister and his mother were brutally attacked and injured. The offence of robbery with violence is, as was correctly observed by the learned trial Magistrate, scheduled under the I iniraum Sentences ^ct, 1972* The learned trial Magistrate also appears to have appreciated tho gravity of the offence with which these two accuscd stood convictoc'. -vj Y7.~£■, hcvcvor, influenced oy th<- jl c - •*•• ••ecu.r.: : ~ + ' -• " <" There are glaring aggravating circumstances in this case. Those persons are, needless tc say, very dangerous elements to the society and in my view the longer they are kept away the bitter for peaceful development of innocent citizens. No doubt these persons must still consider ' themselves extremely lucky that they were not tried for the capital offence of murder. , .On the other hand I fail to understand why the learned trial magistrate who is an experienced magistrate failed to see that this was a fit: case for. commitment to. this court for sentence.. Even then, however, this court still has power t o ,enhance.the sentence provided that the accused are given, at least, reasonable n* notice. I have intended,to do so when the accused appeared for judgment. For^reasons unknown to me each time this judgment was fixed for delivery none of the accused was brought from prison. This state, of affairs has persisted. - , until now when it is almost a year since judgment was due* In the event I have no alternative but to leave the sentence which, to my mind, gravely errs on the lenient side undisturbed. In the final result-save in count two these appeals fail and they are dismissed. Delivered in court this 28th Ma rch, 1977. Ho E. D. SISYA, JUDGE. Certified .true copy of the Original. TABCRA.‘