19781207 TZHC Arusha

F 7 Ci T ( r APELLITE JuRIS1')IcTIçJ, HIGH COURT CIMINItL IPPEL NO 28 OF 1976 OIUGIN L CRIMINAL CJSE NO0 263 or' 1975 -4 1 THE DISTICT COUPT OF MUHEZA DISTDICT 1T 11*1 FZ1 Before A.M Mbaruku Esq , 0--------- ------- D-S€rct Magistrate ALl 1 SHIDI ---------------------------- 11PPEt LiNT - i .. (Original Accused) versus THE REPUBLIC -- - - - ---- ------ ----------------- RESPONDENT (Original ) Prosecutor) --------UDG'MEWT - - MNZiVS,J. In Th1s case the appellant was charg€4 iith and convicted of robocry with violence c/ss 285 and 286 of L t1P Pqnal Code and sentenced to sevLn years lnLtDrisorlment. After hL'r1ng the learned state atorfley'S submission I quashed the eonvictior set aside the sentence -a.ndordered that the accused be released from dustody unless otherwise lawfully held and vdmy tê &i sfcr-so doing0 Thesd are thereasnz.:, First I wduld like to start by sayinq that there was no dispute that on 2.10.75 at about 90p.m. .one, am, Oman, (PW I), was subjected to violence and robbed shs. 150/-. EqUlly there was no dispute that it-was a dark night, and in coffee shamba, when the' off Cnct WS cc'riti:d0 inJiis ssessmont of the evidence the learned trial magistrtc se.i-i, inter alia, in para - three, page three of the typed judgemert -. - "Y have been in the evidanCe ho the ccmela-nnflt.WS robbed. - 'EidenceShbwed ti at' the complainan lost,e; ses.Uniflg {the uggle6- - lt was drk:-n-ight'hut the comlainan •t who was nW't6 both 'dcued------ '. alleged .tohve ientifid boh ôf'thmi This eiidehe of - complainant. I, cctd not believe. It is doubtful that he couid man 'to identify :the:-; . - tdcused, in. the situation he was in - Adg that both accused Wr'ëbW to him and being a to believe him that he identified the accused." -Apparentl' the appellant was jointly che:gcd with another person who was acguitted -. From the- above learned rnagisttt's obseryation it is amply clear that he was donivhce -d,that under the prevailing circumstances the complainant could not have been able to identfy his assa'i1ants. HowGvr the learned district magistrate in convicting, the appellant relied on evidence that the pppellant was seen near the sceie of crime and that when he was arrested and searched he was found in possession of shs. 9/-. He concluded and said: "Exaniing this evidence I could not find' any other conclusion except that accused was the one who robbed complainant0 I'do not believe accused's evdnce that he es 'arrested -at 2 a.m. I convict - him accordingly0" . Clerly and as zigh'tly ubmitted -br the learned state zttoxney the evi'ince on which the lower court based the conviction was ex'trem 1 y shaky. Granted, as it must be granted On the evidence, that the apellan1t was se -en near the scene - of crime soon 'after the robbery, there was every reason to suspect hiw having been involved in the commission of the of fnce. "Bu -t with spict to the learned district magistrate in a criminal 'case ;suspicicnt thtit- - cus-d-:'h.s corn td the off-nce charged is one thing and proof that he has . , . ..../2 4, i :ocic comrnitte he alleged' offence is quite auc'th thing0 - Although the acdused was found near the scene of crime immediately after the robbery and wqs arrested and searched; he was foun with.shs. 9/ only as opposed to shs0 150/- stolen from the complainant. I would like to remind the learned district magistrate, that in 'a ciminal case the burden of proof is always on the prosecution An accused has no burden what so ever to prove his iinodence. In the present case- there was suspiion against the, appellant but as to proof thre•'wasohe '' Apparently 'the Republic died not up.'ort the conviction. N.S. MNZASAS, JUDaE'\. - AUSRL 7.12.78 NSM/GKi( '