19781207 TZHC Dodoma2

'3 • IN THE HIG-H COURT OF TANZANIA /' 01 AT DODOMA • •• APLLATE JURISDICTION CRIMINAL APPEAL No • 72 OF 1978 (Original. Orininal Case No. 109 of 1978 of, the District Court of Singida'at Singida) " GERALD MAG-ASA . . .. . . . APPELLA1T versus THE REPUBLIC . . . . ,'. •. RESPONDENT UDGMEN.,T CHIPETA- ,T. The. ; appellant, Gerald Magasa, was sentenced to se'n years imprisonment on conviction f or robbery with violence c/es 285 and 286 •of the Penal Code. 'He now appeals. Tho' donviction was based on the following evidence: during the night -of l6th/l7th..March, 1978, one Midlaste,r Maleko (Pw.3) and dne Jthina ,Salum (Pi. 2) and two children were sleeping in a room adjoining a shop. At about2.O a.m. the two women were aroused from sleep by a banging on the door. When ther woke up,.they saw two culprIts entering the room. As eietric lights were on in that room, they recognized one of •thôér';culp-rits to be the appellant. The appellant was armed with a panga and a torch. The women then raised an a3arm. Thereupon, the appellant told them to htit up and hit PvT.2 on the head with a radio While the appellant was Qrdoring the complainants to shut up, the other culprit, who is said to havhidaen his face, 'ransacked suit cases and took away a suit and two shirts. The 'culprits then rnde off. ' • One Sharif Kombe (Pi. 1) who was sleeping in anothor rOom in that house went to the women's rdom after hearing, noises. There he saw P.2 bleediig from;the head. 'then he asked he±' if • he could identify the culprits, she told h' t,1.at she .couldT not identify them. P • 1 "then rang up the police whb wont to 'visit the scene. Pw.2 was later takeli 'to hospital for treatment. In his defence, the apellant' denied having robbod. comiainants... He said that during the night in question he'' went'to see his friend called Halifa and returned to hi ''other's housewhore he lived,'at abdut' 8.00 p.m. He 'never went out again that night. On 17th March, 1978, he was ariested. His house was searched, but nothing was found therein. •'Oe'PeterMakaranga,(Dw.2) who is a brOther of the appellant, told the. court that during the evening'of 16thMarch, 1978, he was with the appellant. They played a. game of Drafts till 11.30 P.M. when they retired to slcepo ', ' • He (Dw.2) locked tID main door.and. kept the key. In the morning they had tea together befoe they left for work 0 On that evidence , the loarned magistrate ac.cepted the evidence of -v.2 and w.3 and., was stisficd that the.se witnesses could not have been mistaken in their identifieation of the appellant whom thoitnesses said they had known before and in view of the fact that the lights were on. He rc'ected the appellant's alibi, andso convicted the appellant .as charged. In rejecting the defence, the learilod magistrate had this to say: .. - 'Tho accused claimed, that he could not leave the house he is accommodated in because Pr.-2. Makaranga retains the house keys ... It., is not impossible that he (the accused) had loft e,arlier for a walk with a vië that his host could o'en for hin when he called. back. This practic : 5 not uioommon in our societies,. It follows therefore that the accused's alibi carmot be accëpted'with. tçtinty.' It is well settld. that an accused person whopus forward ai.: alibi as an answer to a charge does not thereby:, aasie any burden of proving that alibi. Tf the evidoi cc add.uccd in support of an alibi raises a reasonabJdu as to the guilt of an accused. person, it is sufficient to secure an acquittal. (LaJisethv.R. (1963)E.I.2o6; R,r. Donald (1971 )H.'O.D. i018; and Gerad.iv. R.(1972)H.C.D, ia.87) • The passage in the learned. magistrate 'a judment quoted above clearly .suggucsts that he ws shiftin the burden of proof on.to,tho appellant. A court 16 not required. to acept an accused's defence of alibi with certat±''. Thatwas a cletr' misdirection. . .. The question, then, is who thor, in 61it0 of t'1at misdirection, the conviction should be uphold.. It is true that both witnesses cliued to have 1'-nom the e cllant befoc and to have recognized.hin that night0 But there is one .1 piece . of. evidence which throws some dotLbt on the voracity, of their story.. Shortly, after the robbery,, P2 categorically told. 4T.1 that she could not identify any , of the culprits. Like Pw.2, Pw.3 he'solf never told. Pw1 who the culprIt were no police officer was cal led to give evidence it is not Imown 'to whom the appellant ' d.escripti'öh' was givon,and' what description. In the circumstances, therefore; I feel distuiøtj wieasy with the conviction, and so I 'cIonot think thet it would be ': ' . safe to uphold it. • . . , 3 For the foregoing reasoi1S ti.: s appeal must succeed. cc is set aside. The COnViCtiOn is quashed? and ths sen - appO±J-fl set It is accordingly ordered thac at liberty forthwith unless other...SC lawfully detained. V /'./ •/ /! B • B uHL DOD OMt. 7th December, 1978