19770910 TZHC Mwanza1

~/Yl IN THE HIGH COURT OF TANZANIA AP.t'ELLATE JURI::::DIC'i'ION FIGH COURT CRii1INAL APP;AL NOo 103 OP 1977 OHIGHJ,"'..L CHIMINAL. CA..,E N0.- .443 OF 1976 OF THE DISTRIC'l' CvURT vF Ki~-lid•L''. DIS'fl;.lCT /1T KAHAMA · Aefor, .. Yo I<o CHANZI 2 ~-'-~~~~-C::2'~~.E,!_~ MSHIGUNI s/o NONGAooo_oo.00000000000000000000°00oOOoooooooo?O~oAPPELLAN'i' ( Original /,ccw;ed y.- versus THE REPUBLIC o o o o o o o o o ~ o 'o o o o o o o o o o o o o o o o ·o o o o o.o o-.• o ob boo o o,o o o RESPONDENT (Original ProsGcutor) t c: RGE: ~-.&:•--..--- 1st Count: Burglary c./s 294 (1) of tho P~nal. Code Cap 16. Stealing c/.s 265 o{· the Pen2.l Code. ; I Cap 16. ''. -OoO- 1.: J U ;JG MEN T .... .- ......,., -. Kahama District Court, convicted. th,'" appellant ns·. charged," and •. ~ sentenced him· to 3 years impris9hm2nt 011: first count, .. an,d 12 months ~ I. ., imprisonment on 2nd count, sentences to run concurrentiy. On 17/11/1976 at about 3 a.m., Po\:J.1 and P. 1J.3 hu&l:!and and wife, h~ their dwellinq house broken into, 2nd 3 bicycles, two· planes and'. ~ h 400/"' stoli2n th~refrom. As a r,::sult of reports by PW1, the appGl• lant was arn:stcd untj. chnrged as abov8, and finally convictedo The npp0l- lant is app~aling against ·~onviction and sGnt2nceo The appellant's dcfdnce "'.ounsel Mr o Singh, submitted that as :the incirl.~nt happened at night; qu2s- ~ions of idelltification must b_e settled beyond niasonable doubto Mro Singh · went on to sa.y 9 that in this case, as the P~v1 and P\!2 ran out of th,:~ hous.l)_, their identification of the culprits or any of th0m, was difficult. · Mr. Pinda, the learned State ;\ttorney representin<] th2 Republic, dccli!"ied to support convictions on the same grounds, raised by Mr. Singho As the two Counsels pointed out, the question of identification is very crucial in this case. It is with this in mind, that I should subj ,..ict the whole evidence to scrutiny. Beginning \'-'ith PW1, he testified that, when the door to their house was storm1::d op-:m, he shout.=d for help. As soon as he did so, he heard a gun fireo He and his wife, open~d the bnck door ran out and hid in a hut at the yardo P1 11 maki:'!S no pretence, to hnvc identified any, while he was still in the house. In fact he had no time to do SOo PW1 and P 1.12 further told the Court, that it was whil(~ they wer0 hid- ing in the hut, that, th,1y identified the app1e1llant through torch and moon lightso But, while PW1 told the Court that the appellant and his fellow companions, were four, Pll/2 says th2y 1--1er-..:: three. And while both are consistG.""lt, that the appellant had c muzzle loader, P 1J2 adds that oth~rs had short gunso And that all this could b~) seem, al though only one of the gang hacl o. torch. One would not avoid wondering, whether the circum- stances prevailing, would permit such critical -.:1xamination, and eV'3i1 whether, thGS\:.! p,";:isants would distinguish, o _short gun from a muzzlG loader. I am h~re, avoiding a hangover, that presumes p0asants ignorant till the contrary is prov0do But if they were all that, cnpable of identifying the appellant, why differ ubout the numb,.:r o - 2 It is also questionable, wh0ther, P~1 and PW2 hid in the hut th~y testify about, at all, considering the; t\:?rror ,md fc..::i.r dominating th,: scene at th0 tim20 Pl:J1 further _f:._2.y_s..:-:- "I did not know the athur p~rsons, with whom the accused wasc . 1.Th:=;n th.,y got into my hous0, _my wife ,::md J:, ran to on,:! of our n-..:i~Jhbourc ·on our return, we found 3 bicycl•:S, h-19 pL:mcs and cnsh 400/= gon20 t,y r"!.0ighbours qcthert=d, ._ once the~ acc1;1_se.c1_ and his notorious-gang leftc" .. This piece of --'".j.-d~nc0, is not r8pc~:;:tcd by P\.\120 But according to P 1t1 Masanj a Kubyul:i, P' :1 and P~\J2 rushe::d to his house and reported the i-1.cir:L.mt to himc He t-~stifL.:s .:is follows:- 11 A gang of armed robbers hnd robbed himo Mahana rushud to my· .house uccompani'ed by his wife, to inform' me ·t11\t ·his house Wils burgled by an armed ·------. gango lrJe lab:r. went t9 the house o_f _t:h 0 - plain,::mt, wh~~n 'we thou.a.hi- __,,_,__ _ u -....----· - -·· - ,_--~-----~ got?:~- --- --· .... er up: Sei · · -----=-,.1:rr,:~· -- - , _________________ :-: MWANZAo ~ \(,~,.A..-:,. °E O . ls. ' . \·v O KATI TI ~ -Ii-' . v--l-"-::~v-J~ I. •• • • .. • JUDGE