19770905 TZHC Dodoma 1

W-F IN IL RmF. COURT OF T000IL S M. L.T DDO]U. IPE lILTE J[J]IISDIC TION HIGE CODUT CRININL 22IL No. 74 OF 1977 ORIGINLL CRIUIN!I CISE No 4 616 OF 1976 OF THE DISTRICT COURT OF mING. DISTRICT AT LIHA BFuPLE: J.I. .MLUJ . . . . . RaWiT f:aCISTPJ.Th DLUDI SLUN versus 1 DTTnT THE T)LUJ Tr U.L).LLL'j • , ....... . .LLih)J CHRG-E: Rohbry with violence c/se 25 and 286 ef the Penal Code. J U D G ]'I E N T The appellant, Daudi Salum, was convicted by Iringa District Court of the offonce of robbery with vir'lnce c/ss 285 and 286 of the Penal Co do, and was sentenced to seven yeazs inpr sonnent. He now appeals. The preoccutionti evidencc was as follows:- at about 11.00 p.m. on 20/9/76, the complainant , one Mary Renac'thani (?w.3) was returning home from a ponbo shop whore she hadeeen selling poubo. On arrival hone she knocked a tao door of their house so that her mother (Pw.2) could open for her. Before the complainant's mother cnuld open the door for her, the complainant was grabbed by the iieck from the back. When the complainant raised an alam, her assaillant threatened to stab her with a knife if she continued to raise analam. Lpparently, fearing fLr her life, the complainant stonpod making any noise.. Thereupon the assaillant started seizing the complainant' a cloth :3 which she was wearing. To start with, he pulled awar a kitenge with which the complainant had covered herself, end threw it down. Neanwhilo, Pr .2 had heard her daughter's ai:rm. She thei opened the dor to coo Whi, t was happening. The culprit then ordered the two women to kup quiet or olso he would attack he whole family, and declared that what ho was after was money. He th•n continued to pull off th: con::lainant' 5 clothes. He next pulled off another kitongo which the complainant was wearing and to one end of which the complainant had ehs, 45/- tied in a knot. The culprit seized that kitongo and walked away with it. In the course of that strugglb the complainant's dro-es was tern. Ipparently, before the culprit disapparud from the scene a tenant in the complainant's house, one Paul N goba (Pw.4) had heard the commotion. So hc cane out and saw the culprit walking away and Pw. 3 told him that she had been robbed of her kitenge and cash shs 4'5/-. Pw.2, Pw.3, and Pw.4 identified the culprit from the light of a street electric lirat to he the appellant. Fearing for their livos, the witnesses did not follow the appellant. - 2 - Next ncrnin, Pw.2 and 2w.3 reported th. a:tor at thu police staticn; Both Pw.2 and w. 3 were emphatic that the appellant was a tutal stra r t thou, and Pw.3 further deniud th su ;;sti.m that appellant was her boy-friend. On 23/9/76, at about 2.15 a.m. P.C. day (r.1) was on patrol in Iitanzini. ara, Irin(.a t aiu.i.p,° which is the ra in Wilt ci' -L 1i clinnt's hcuec is i...t Whilc be was Oil sch patrol, h:,found th appellant uL.:pin: on an old sofa in a, dilapidated hut. Thu ap llan had coverut himself with a .1çjt'ie. Pw. 1 then awak. :aud him, and On hein interr'gatcd, th pel1án't said that had boefl sloepint..wi.,th a. girl who had loft. 1 1 r.1 , h w..v i, suspected th.ó appellant :;o bo a thi::f. HL •thon .t'ok th ppllont to police. station wh:.re he .soizod th kiton:c and kept in together with cth.r xiiihits. Later, th p:llont was ol.asod on pctliccbcnd.. On 29/9/769 uh. ., coulainont wont to tha..pol._I­co, stoticii • to inquirç as to what had happened, about ther ep.oit of robbory she had lodged with the police. Pw.1 ?thn took her to th'ir oxhibit store. where the co•rmlaiia:cit was shown a heap of clothas and she ide tifiod - .kitenç' as the one the robbed on the nii:ht of 20th Sptember, 1976. That kitenge turn::.,d out •T' he, the- very on ' which Pw.1 had seiized from the appellant on th.e night of 23rd St'ptember, 19'76.' . Durin th: trial both Pw.2 and Pw.3 ido:fiud the kitenge to bslongto Pw.3, it having b. :n bought by Pw.2 as a pair for shS. 67/-. Both witnesss gave satisfpctory description of it before identifying it in court. In hisdofenco, the appollant'gavea l.ong story of what he did between 17/9/76 and 28/9/76, the giot of which is that ho claims that the complainant, is his 4rlfriend. On 28/9/76 hu had with him shs. 900/- On th sa. -.j day he went to see his girl-friend, •th: compainant. E.h did not find her, and :ioth;' ai she had gono t: ll poubo at a poube shop. So h wont to th pombu cli.;; wb .rc he met her. He witd for hor till 11 . p.m. whon tliy both loft for thu oo:pJirantt s house... On rori1ral i-h .r;, he gave the complainant ;h. 40/- to buy boor, which 1-1 ' complainant did. But as eb.., enterod with thc hoer, three ran entered. They ordered him out of the ,r end as h wr.e -.cing out, he was struck on' t hec1.. H fell down :.nd ;bey relieved him of his money, shoes, end an oris watch. Te then went to report to polio - station where ho reported :h.t he had b on robbed, wh:;roupon h was told that h: was the robber, end was tahen into custody. He showed to tb trial court the injuries ho sustain..d during the incident. The aauilant said that on 20/9/76 ho was at hula buying maize. Th3 learned r;sidont magistrate accepted the evidence of ?w.2, Pw.3 and Pw.4, and found the appellant to be "a despicable liar" and rejected his alibi "with the contempt it descrves". As a first appellate court, I am entitled to review tho evidence and cohu to my own conclusions thereon. In doini so, however, I cannot loso sight of the fact that this being a cd,se that dep:nded to a large extent on the credibility of witnesses, I have not had the advantage, which the learne d trill magistrate had, of seein mid haring the witnesses as they (•;av'• evidence. Both Iv. 2 and I1,-r.3 wore positive, as was i'w.4, that the person they saw robbing Iw.3 was the appollan:, and that I • - 3 - they wore able tc i±:r;ify lila frce the 'stroYG electrict light which le outside their house. For Pw.2 end Pw.3, .1 note that th. incident did. nct.hcpen all of a sudden. It t ok sane tine before the culprit 1id his hands on the ki 31C tT1 1C1I b d ccap1ireaet' s nCfl3i The ovicleaco of ident fication of 2w. 2, ?w.3 nd Pw,4 is reinforcod by the c'vi•dnce of: 2w.1 - the police ofrcr who roun ' ilant alocp in o dilaidtod tructur - n c'°v rr huB if with a kitore vThich turLd out to b the urty f tli ciplun'n± qhec'-i ws S& ln dunn tilE rip of 'i r b 1 cry On t}u e prounc , I an stusfi ci, 's w's tliG 1 rnd tril r sidei ustrato, that the evidence of ueui Llicoicn was uater—upht. In the foco of that over—wholning.eVi ; deflco, no rasonable tr±]einal could • have accepted the. ejrollant' s alibi: as creetin: any reasonable • doubt. The ape.ant's contntion that ho was a boyfriond of 2w. 3 was cateoicaJy denied by --'w.2 and 1hi.3.. On tIe evidence ff]Jy areo 15 with the learned rn,cis trate that the entire story of the.,ap:e. lant. was a ridiculous. concoction.. 0 It us true tl- tje p il .nt 1)Sirlfl unju a but we hvo t'. vc ic'iCC n1 ITu.1 h' h ll'aiiu b ten up by civili:'nswhen he was• 1ain ariestod. On tie :vid ;nc , therefore, there ce b n - dout that it is tne E L)O lnLe whc st 0 l Ji ccapl ie - et 'e iney C1 kitan 0, n 1ei t G!lC tui at ch stelin h u d •violon.co CII :re()n of th e coaplainent ud that he threatened to usc violence on there if th:.yraeu alarre. On those droun s, I rr a h he learnc1 st ourney th't the cv.rce fully justifi 1 the cow3cJeui Ls t b' aLnce, it is ih iunu1 prscnibd by statute. It is therefore to stand. In fin, this ap el ic usaiccod in its ccirty • B.,,±).Chipeta .' . . Judge.. in Delivered Court at Dodona this 5th day of •9opter1ber, 1977. •• B.i) Chipet' 0 . Judge.