19780427 TZHC Arusha

~ Rr,\ I4p ... IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 182 OF 1976 ORIGINAL CRIMINAL CASE NO0 70 OF 1976 OF THE DISTRICT COURT OF 1-JAI ISTRICT AT HAl Before P.M. Nushi, Esq., --- - ---------------District Magistrate JOSEPH NYANT'JARO APPELLANT (Original Accused) versus THE REPUBLIC -- ------ - RESPONDENT (Original Prosecutor) J U D G M.E' T Jonathan, J. The appellant was convicted of robbery with violence and given the minimum sentence. From the convictiori he has appeald to this court. According to P.W 1, the complaihant on the relevant night •t about 7.30 the appellant: whom he knew came to his shop and bought some cigarettes. That done, he said the appellant thre open the pocket of his shirt and took the sum of shs:, 440/- which was in it. The complainant hold him as he raised an alarm (.uring which the appellant reo e and took his wrist watch as well. Two people, including P.W 2 9 answered the alarm and the appellant upon 6e.eing, them withdre from P.W 1, took out. a knife from his pocket and swung it around to 4ae them away. He then fled away with the money and the watch of the complainant. The evidence of POW. 2 was eEsentially identical to that of PW 1. He, too, it would appear know the appellant. it was alread/ dark but the witnesses were clear there was a lamp burning in the shop which enabled them to recognize him. The defence of the appellant was that at the relevant time he was away having travelled to Taveta and he had only just arrived back when he was arrested. However, the leatned magistrate on the strength of the evidence of the two witnesses whom he found to be truthful rejected the appellant's alibi and convicted. they knew him well and as the /mist- circuiistances were such that they 6oull d not have/him. 1 am datisfied aken the lower cout was justified to convict0 The appellant,in his petition has claimed that he tendered two tEavel ticketshowing he had made the trip and that he was refused leave to call tivo witnesses who had been his hosts at Tavet The record does not however bean Out these claims. The case was heard by a magistrate of considerable experience who, 1 am sure, could not have ignored the \ . travel tickets had :.hey been produced, while as rega ~ ds the alleged refusal : to call defence witesses, the record shows the appellant said he had L no witness to call0 ln the petition he has also alleged the complainant had hold out a cirildge against him in that he (appellant) owed him some money which he had failed to pay and that as. the result he had threatened to fix him. 12 that was so he should have so stated at the trial and he cannot now be brd to allege so. in the result the appeal is dismissed in its e -..LYe Delivered in coUrt this 27th d?i of April. 191 P.M. JONATHAN, JUDGE MJ/GKK