19770926 TZHC Mwanza 1

\ 171 jrp, iICTION • CRIiI1LL Ji?]3I L TO .12. OF 1977 4,. Tth L ( 1 'F-J 0 52 CI 1975 J T : CT COCIIT OI GIiT.[ DICmRICT LT IT C i ri, Ca Di s+r c IS[.L ver5u. r,tT 1TTTTT TCt .Ljifl £LL!I.UJi.Li)} •0000000000000o,00000 0000000000000. .LL.L,,I-'JLJJJ_Jr. CRI:RQ-E- Robbory rith ic1cnec c/s 285 nd 286 of the 1erjr1 C(Io C) jr) 7oJ.j of the Tws. -. sIsY;I J:- . : Thu appoJi.n o ih three others orê orit1y tried -•- on a cI:ro of roDbry i1i - i1orieo contrü'y • o sections 285 : nd 286 Tho • -ho rr 'j oocod C.CUSC.1 • t the trial • . was- acci.tto1 :fCr :.. in hie :1efccc ..i on the np1icion of the iosrrt c li LLC rr cutcr P10 oircu etno CJ s surroun'ing the so - pTh c toa cc o - cy o ur 1 rs -ic As tt or of fact they ru hiR)e1y SUcipiuiC:U]is. Howc'i,or, I Co not intend to • make any further obsoraticno over the same boc - ncee, I think, the. point is eu.fCiciontiy brnc. -ht hone by r:iy learned brother, • Mt1- 1a J.•, in Qriueinai'oa1 Cc.452 o 1976 (Mcnza Ndgietry). The ppoi1.nr :r.tJ-th runhii:ìi - two others wore, however, found i-iJt.' as ch---rgud and they. w-ere, each, euntencod to the statutory niniru of :vc: , r ic j 1 0 1 e ci Thc COflV1C5, who e11)ered j • as fourth accused t the trial appehied to the High Court but his appeal was disL!iarod, ccc Qrieinal Appeal No.452 of 197.6 (Iiwanza • Registry).. Tie ach11..nt cho Pus third accused at th trial, is :o.on sloe ac. oalin-.;. The third: coni;h_ct did. not apacal It s t hlihud t t1 tru- 1 tCt on the night of 29/1/75 • • the co:epi...einucit 'c house-cun-ehop wac invadod by a. g;roup of savages who were armed with, inter ali -, a gun,, They gainod access into the buildins. after breaking the door with a huge steno. While inside the building they fired more shots. Sons of the pellets struck the ccmplainantts wife, furu Hassani (2w2) who was: then sitting in hod, weJe awake., 1.rue,e -U-.foeding her snail child in a light proviTh5: by o lamp whech was on in cfto roo where she and her • husband, the complainant wore. It was ho case for the prosecution that the appellant was one 0f the said robbors. He was identified •• by voice by the ccoclain. xiS; C soon by bru (c2) before she bat coniciousnocc as. a result cf the :SSUfl wounds which she received in the raid. In his Cot cues at the trial thou ppeiicnt. stated that on • 0/ 1 /75 at about 5.0 a,n. Soc h rd gun shots and cried-1 for help in the village. Sic ;ot out. ci' hi• house and proceeded to the scene He found a lot el' ceoulu inciudin; P.C. Nwita (Pw3) and the Word Secmthr Pr li r imtee he om the person rho Cp:un rod ro first accov;od at the trial brought by h. • group of people-. Pvcnfuai1 i;hs first accused was taken to • • the coin iain- eit s house at I: :ozugo and ho,. appolinit, accompanied there. hSiic tho'c ho a po]ia -.rt , o•nereosed his syeap:.thies to the complainant beferO returning hoeo. On 1/3/75 ho, uppollnnt, was rrcsfc rh1lL ig n 2 flL±iI or funr 1 cflC on /3/75 he woo broughe oc uicre the triai court. The Lu risC triol r • -cLotrnte fIned tht the identification of Jn 1 L ea icieniiy h on ost 1cTh chod iore proceeding to convict him. • • • :5j is 11 tini f :- .1 tao a;ncih. act contends that he ... .. I -2- was not iuffieientiy. :Von.ti±'ied by Pwi ;.nd Pw2 bcc:u:c conditions favouring a coeoc iJbetificatiois wore, et the time of the robbery di:icuit.° Th. i:aet cf hie r'eoat the appellant euotod the case of 1b 1 U ..i, 20 .O.AL6 in Jcii it oil , hyl.'. : Jv 1 ci c o 1 icr Enst OfrLc that - "although 2 Kct'K - g bc: e'c•.: by the tasMany of sinelo witness but Ii is 'inalu 0wo nnt Mson T Ab "r tcstinE with ire greace -b cre tbc ovK.ioz of n ei.e :.t:c.s rcepocti:cig idontifi- cation ,Cs':ec i1, it e' I.izovrn -:- h' t th• con itions favouring coirect F-ntiYicQizn 7crQ nifficult. in such circunst7nces what is nce'ci i oir hot?.er circu:3n.ntial or direct , pointij:; to 1eLilt fron 7hicn a iudgo or jury can reason. ly conclud that the' cvao. cc O' ifiC ticii can E'ly be accepted as irLo fron Un yousihility,of • L'ror The evidencc ci icl':thiio tion in the' :Lnstbnt; cho, hoovor, was not of a ein:ie uitnaos icat of two witnesses. iiai'htodly the robbcr3 took piacu in the night. owovor the undisnu ted evidence shows that there was a mop on in the roon where the co.opiLe.in:nt and his wife, Pw2, were 't the ti:,o of the robbery. The compYiMnt himself saia that he did not see the appellant while the lather we.s in the root but hoard nim outside' urgu his comnanions not to light their torches. He, i.e. the 'co:plrineñt, therefore identified him, t mppellant, by.'his voice. Lcecrdin: to M,.howevorj Cho saw an recognised the appellant when: the latter re-id about four others entered the roon wioro shc was, as aforesaid, sitting in bed breast-feeding her bhild. ' It has Dooi held by this court that where identifications is the solo bas:Ls of a conviction then it. iiurit be water tight. The inater:b1.quootion in the,, instant zjvo2l is, thus, whether the evidence of idontificatidn in this case was wtertight. On the evidence on .reccr: I 'do not,h:,:eite,tai to answer this question in the i,,s the lonrial trial magistrate quito corrctly obse- rved the appellant -r's not a : tr'ogor ' in the eyes of both the compl:" in' nt thi hAs w1fai hw2. It is in evidence that the appell' id; . ,nd the cc5:rplain' nt are. neighbours. Puther, according to Pw2 and her o.virk;nce on Ma point w:'.s neither challenged nor ddntradicta, she was already 'ahie c'wake when the thugs embarked on their, savage attack. Sic 'T 's not as it wore, awhkened from sleep • by the invaion in which ease one would perhaps have thought that it nay ,hayo taken time for hur to get : a clear vision, and this ::t7'y not hav'I.o ioen bdfore ,I:esing her c,onsoiouenss. Far iromit. In, addition to this both the complainant And Ii2 d ' - ''01080 that they I'd identified :th.e 'apcJi1*nt to have been one Ol the I obbers at the. earliest possible oppertnity, n7nolylwhen a Police 'officor,' P.C. hiwita (43) arrived at the scone.'' To' my mindAVis fcL lendo orod1 to 10 Ov3dcicc of these two witnesses o,n this aspQcl of the case. in hie petition of, nni-cal the a,:nollait cJ!allenges' the evidenc of Ewh and P12 that the y identified him because it wis not until after one full month when ho, appellant, was arrested. and. 'charged. According to the appellant on 30/1/75 ho took part in the arresting of, the: first accused at the trial and he himself we arrested Oh l/3,'75. ylrt f ran eta tcoLs in his po'- itioia of appeal thee alieg.:'.tions. by the anyalinnt do net ap'poar to bo OUpported nnywharK Is a matter of fact, in his defence at the trial the apnel]an± did not nzy th"t he took part in the arrest of the first accused. Lccordang to his ho only sw the first accused being brought to tiac scone by . oreup cs people. 10 doubt the first accubed ouot thecOfro have alre.- dy been apprehended when' the 45aape1lant saw hipl 'if a -hill.' Secondly, the record of proceedings in the iocr court clan]n shore that the appellant was brought before it for the first time on 2712/75 and not in March, 1975 as alleged by him. lThoy tao '-mcl7aat wee r,ot'-hrorm:b't to justice oailicr than 1 C 27/2/75 (03) whwho ndnittud tht Il nnd PT2- -' 1 - t ill r cvVrd J'IOUSC he, Mwita, knci was os ii of the ro i urs knits. ; cctifid at the trial to the oihC1 thvt }L to follow the appellont nt his horso on several oconsions but imilod to trce him. Accordinm to P.C. Lwlta after the robbery it a.ite:.r tie 'i; the iyipollnnt had shifted from his horse in the vITLIIe ]iiflai]y.T it to in ovidones thvt F. C, iiiTita assisted by the b rd Cooret r ( 1r c who nctuqlly z rrostcdthe first cons d After two worninqAN to he firK as thefirst accused : :ato a biT to csasc, ;iT - erL - c'o::cii t neither of these two witncswas,i -b - cc b y tho npyolinnt on the aiiogc.tion tiret to, aDpaiirnt, also took part in the o.rrcst of the first ace need. In short ith.;: the I.:. mmcd iriirgistrate, I am satisfiet thpt st rry gi7an by tho nppo llpntin his Pefence is a mere COck—rnlc:--bull story incab Is of rni3ing afl1T rce.sonablo doubt in my Since there was sufficient light in the room and Fw2 was wide awake cut the material time end, further, thiS t the asyollant was not a stranrair to both Psi end Pn2 I em satistiod as cues the trial m'cistruto, that the identification of the appellant as one of the robbers had sufficiently boon established. Thu appellant's conviction wee, th.rcforo, ;juctified. The sentence imposed is the mininwo proscribed by law. If anything the apollant muet consider b imee.lf Very TLuc}.y to have got nesey wiT. th the mini :u 5iTidflcC. ffudioss to oa', there were aygrevatin; factors in this cnsug The aprollant was in a group which was arm ad with iet}ueTL w=pona such as a Tam, in the night and a person suffered injnrie in the raid. Had the appellant been served with a notice of :aihanceecent I would not have hosi tated to enhance the censenco - ae.emc by the trial cour - • however, as he was not I will the smuLcnco as it is. In the fi.CT.i roeum: this ep - .;ai fais SJid it is dismissed in its entirety. Duii.vorod in omen Court a ii Iiiwanza this 26th icy of September, 1977. NFI:JTZI:. • 26TE1 SJ:JLJL2 9 1977 JUDGD