19780127 TZHC Mwanza3

Cot.A. ,e_.., ~ T H ~ HIGH COURT OF TANZANIA AT MWI-1.NZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NOo 121 OF 1977 (Original Criminal Case No .. 5 of 1974 of the District Court of Biharamulo District at'Biharamulo - Before Jo Wo Ogola, Esqo, District Magistrate) NICOLAUS MASHARUBU & 4 OTHERSoooooooooooooooooooooooooooo•APPELLANTS versus a. THE REPUBLICo o o a • • • • • o. o o • • o • • o . o o o o • • • · • ., o • .,,. o o . o o . o • • • • RESPONDENT CHARGE: Robbery with violence c/s 285 of the Penal Code. JUDGEr1ENT LUGAKINGIRA, J.: The appellants, Juma Francisco, Donat Nkondere and Kifaru Lugora, along with Nicholaus Masharubu, Masara Karani and Nghondere Ntawantemi, were convicted of robbery with violence and sentenced to seven years' imprisonment each. It was said that on 6 December, 1973 at Kibehe Trading Centre in Biharamulo District, they jointly stolcc= a quantity of shop items and in the process used violence on Deus Kilekamajenga the owner., Two of the accused, Nicholaus and Masara, we1:.·c said to have absconded at the close of the prosecution. It appears to me that the trial was a nullity. The evidence for the prosecution was heard by one magistrate who retired from the service before hearing the defence~ The magistrate who took over and h~ard the defence only did not comply with s.196 of the Criminal Procedure Code. Whereas s.196 (1) gives the second magistrate a discretion to act on the evidence recorded by his predecessor or to recommence the trial, s.196 (1) (a) makes it mandatory for the court to inform the accused of the right to re·- summon the witnesses or any of them. In the instant case, this was not done by the second magistrate. Indeed, he proceed,!d to hear the defence as if so196 did not exist at allo In normal circumstances the proper course for this court to take is to order a .retrial. I am unwilling to do so in the pres,~;1t• case for that would be to the prejudice of the accused. There was hardly any evidence upon which a court properly directing itself could have convicted the accused. The complainant Deus., who was beaten to unconsciousness, . first stated that hr~ did not recognise any of his attackers. Then in the same breath he alleged to have recognised Nghondere Ntamantemi only, and this., after one of his eyes had been damagedo His wife, Katarina, alleged to have seen and recognised all the accused except Masara Karani. ·Yet, when she escaped to the house of one Jackson at the time of the attack she did not name any of the accused. She did not nane any of them even the following morning at the Police Station. The id8ntification of the stolen property was also ·far from satisfactory. The complainant merely stated that the fe·w i terns of clothing found on three of the accused resembled some of his· stolen property., But his shop did not have sole custody of such items o~ clothingo .ln abort, therefore, '.:the ev.ldence was quite insufficiento To order a retrial would· amount to giving the prosecution th,2 opportunity to make amends and fill in gaps to the prejudice of the accused -accused. I will therefore desist from that action. I will insL':!ad allow all the appeal, quash the convictions and set aside the sente,1ces imposed. The appellants Juma Francisco, Donat Nkondere and Kifaru Lugora should in the result be set free unless further lawfully held. In exercise of the court's revisional powers I similarly order that Nicholaus Masharubu and Masara Karani, if they have been apprehended, and Nghondere Ntawaritemi- 1 be .also set free forthwith unless further lawfully held • 'WdANZAo ._l'..:'.'lt\,,,vJvv1 Ps. 1r: \LUGl'.J<INGrnA 27TH JANUARY, 1978... JUDGE.