19780902 TZHC Mwanza2

·---'),:• ... ·i·: r. .... · : ~ 'i :, • .. . .... :•••:•I•: IN· THE ·. .HIGH. . . COURT .: OF .-.TANZANIA -r, . . : AT MWANZAo !' I' . I·' APPELLATE JURISDICTION . I HIGH COURT CRIMINAL APPEAL no• 165 OF 1977 ct.,cr. App. No.166/7i & 167/77 (ORIGINAL CRlMINAL CASE N©;...-879 OF 1976 OF.· THE DISTRICT COURT'. OF SHINYANGA DISTR!CT AT SHINYANGA -· BEFORE$., Go· Co KAJERI,. R .. M.. ) P.E'I' ER KA SANDA ' ·••o~ ■ ooo ■■ ••·••o~ ■ - ■ o ■ oo~~~---0 ' APPELLANT· ' (Original. accused) THE REPUBLIC ••••••••••••••••• ■ ~o•c ■ oo ■■ o~oo ■ o RESPONDEN'l'.. (Original'· ·Pro~ecti.tor) • •• ~- .J • f,;,•· ·. Robbery with. violence c/s· 285 and J~~6.-of .the Penal Code \. · iJ U· D G M E· N. 'll' · 1_-; •-:;r· .. -: .The/appellant: Peter Kasanda and ·two o·thers who .have, alsq: appealed were charged and convicted with the offence of Robbery witp ,: Violence c/s 285 ·and 286 of the Pen<ll-Code and were sent~nced to seven years impri•sonment. • The other two rappellant~:.-are Samwe!'l Paulo and Dionis Ntemi. The· appeals .h.av:e _been consq!l.:i,dated in this one. 1· shall retain· the' 'der.cription of: the appellants air they were described --in the lower: court. Samweli: ,1?aulo was th(#;-,first ac:;:c;used · -~hile o:ionis Nt'emi was second- accused --end Pe·ter-. l<assanda ,M,as.-the .... :th:i'rd a<=;c\ised. All the appellants have appealed a'Jainst both d~~,jict'i6n ·'and··fseht~nd:o · 1\11. :th~ app~llants denied the cha·rge,and they are --still denying that 'the·y ··committed the offence. · Dur:in:g the ·trial the prosecution had ·two witnesses. These were th~ ·complainant -·Martha Mboje - Po·W~Io ·and her companion John Mwenda - P.Wo 2. According. to _the -. . . . : ' ~ j·. ' • '~ . evidence·the·offence was committed in a rainfng·dark night and it w~~ nr+~~ ai~-~~Qh.,_ At the hearif).9 of this·· appeal the appellants- were not presE:nt as they did not ~ish:to. bepresent. The state Attorney whc;, appeared for the Repbulci did not support the conviction on the grounds that the appellant could not be identifed that night, as it was too darko The state Attorney further contended that the evidence of P.W.2 is unbelievable when he said that the first accused went to collect dogs from his house while the third accused was search, the complainant. ■ oeoo/2 The -· 2 The evidence adduced on beha'.l.f.' of thG! prosGcution was to the effect that on the day in qu~stion PoWoio and PoWo2 who•work together in a bar- 'lieft the bar':weil'. af,te/ mid~nighto On the way '. • ...... , - •·r~ :-:·· • ·--~~ "r:.:..,,. ' they met the three appeliant:s:.;who··:told P.oWoio & PoWo2 that they - appellants were militia man . and.would escort '· themo \ Later on the appellants demanded. tbat ..·~he--complainant remove her watch. When the CQl'(lplainant~h~s-~t~teq.,:.. sh~ wa:s. hit .with a clubo At that stage PoWo2 ran away and was chased by the -appellantso Later ttl_e first.,accused returned and told. the complairian-t that he ·Bad On the way the fir·st accuseH::demanded: th ii.'t 1 come to fetch her. they should have sexual intercourse, but the complainant told tl-e first acc;:used · that _they go home where. they .could play · sexo ·However, when the party..r~ached near some houses, the·complainant raised analarm and people respondend and the first accused ran away~·:: The complainant . . said . that she went to the. police· statiort wh~1.t~ ·.\ : ~ she also m_e:t. P!>.Wo2 John denied to have gohe to the poli~e that -nighto Looking at :,:,.,,. theprosecution evidence, it is not known if the ·, appellant infact had planned a robbery as alleged by the pr_osecutiono Why then infact did they not take. _the ~~_t_c;;_h away o Fur,ther more it appears from the prosecution evidence that the offence was committed near some people's houses and in partic{ilar :near ...-tit~ first accused house _who is alleged to have ·'gone· to: his .house and collec;ted c:logso ,-What the dogs were for it 'is difficult tc/ .... und~f 7tando . ~~e would have thought .:~ha:t dogs. would .attract attention Agicrin it_ is not known why one of the_ accused should rema:in with the comp;J.ainant and demanded sex froth her while escorting tier until ,. . near tier home if the inteJ;1tion wa,s ..to'.'rob hero If. John had -:ieft •, .·:,; tqe __ c;omplainant being robbed, :wou~d:·it not be reasonable fof :~J6hn to have go~e to .the police station .. Which was not far or awake sqme '·ath~r 1 poap)..o ~o >:'OCv'UO -l..l-= "-'-"ttif.1.t<.1.•---1..,- "·· -':h= ·.iv.fd.ence. ·as ,~it:--'. ls ;-"' 'it' ,<;1oes not: look like a_ robpe,~:_caseo If any"~~1fng _1.'-. - .. :. .. _.,,,:,..,t+d.o.g else. The prosecution ev,:i.de~ce as adduced ir{ :the trial court was . i:~~t;e~,1abl.e and should ,··· . .•. • .: :~o-~ ! . hav~ been_ believedo . It appears that tp~re was ,something fi,shy. aboµt it .. : For the. ·above reasons :i,.t i_s Ul'}Safe to allow the conyiction to, ,stande The appeal of all appellant is allowedo The conviction is . qua_§hed and-, th~. sentence is set aside~ The. appellants.- are to be· set at 1•iberty unless i ·., ... ~\-./ .. No Mo MUSHI, JUDGE 2/9/78 . .