19780717 TZHC Dodoma2

IN THE HIGH C6URT..OF TANZANIA AT'oono'MA .... - ..,: · . ·APPELL1rrE JURtsrircTroN .CRIMINAE. APPEi\I., NO. ii9 OF 1977 , : (ORIGINAL CRIMINAL CASE' NO. 138 OF ··19-75 OF THE o,:i:sTRICT coURT OF ··_ooooMA ·), MA'l'AHI BALALU. • • 0 0 . . .;·. 0 • •o • • • • • Appellant (Original Accused) .·• Versus THE REPUBLIC. -~ • • o n Cl • • • _. ~. Respondent (Origi_nal Prosecutor) · Robbery with viqlence .c/ri .2~6 · of the P~~ai Code; J . U ··o G M .E N . T :!.9NATHAN z J·,. . . ; . . 'The appellant was the 4th of. ·•five ic:.cused persons, .. ·.· '\,~ 10s\'! 'descriptions in the lower court are .,retained this appeal,' in ch'arge·d· -jointly with_ the robbery of 35 h~ ad: of cattle. The fifth acc\.i'sedrepo.rtedly died in. the· course' of the -t:rfaf in w"dch all the remaining accused were convicted as chr.:1rged and given the minimum s2,1tence. Against the conviction the 4th accused MATAHI BALALU has appealed to this court.~ . The compl~f,ri'_an.t'-(on the material night)and P.W.2, one /on the of his two wives£ wei;-_e sleeping in a hut when they were visited material by a gang of thieves who bi:/at thern up extensively and then tied night them up with rop~.,_~:J?~W~:_l,·.::-tn.e· other wife, who was sleeping in another hut in the same homestead was also tied upo The gang then opened the cattle shed and drove away all the 35 heado Thr-:::e g_angsters, .. however, . re_maine~i._be_hind_ ap,t,arently to ensure no alarm •. :·,J:as, 't\3.isect·"·be°fore· :th~ ~itnais, g'ot comp'letely -o"i::.it of the area, ·and while thf-•re they got hold of a sheep of the complainant, chopped off the tail. roasted and .ate iL They nlso cooked ugali and ate 1t with milk they found j.nside ':the houser . When they were so engaged P.W.2 at some point mana6ed to 9reak free to report to neighbours. They quickly answe·red the _calJ.'"but they found the bandits having disappeared. .'f:l1Ef_::r:epes were ur:done and the complainants takc-:n to hospitalo In the mP-antime an· all-out search was made wj_ thout any clue showing upo Several days later, however, following what proved to be a re liable report, Po w.4 and three youths travelh~d to a village in the neighbouring district of Iring a and· there m,:!t the 5th accused and three others driving 16 head of cattle,. the brand marks of which they identified as those of the complainant. They arrested the 5th accused and one CH,,~RLES but not without stiff resistance and a fight in which U1e latter lost his life o The othe~r two, however, escaped_•. It was the prosecution case. that the appellant and the three others who, incidentally, appear to be brothers, were among the robbers. For this reliance was placE1d solely on the evidence of the complainant and his two wives-~ Their evidence was identical. PoWol and PoW.2, a~ already pointed out, ·were sL,,eping in om~ hut. The top was thatched but there were ho walls. They testifi·2d they identifhid the four accused to bR among the robbers, this because they were co-villa<Jers whose names they knew ••• /2 2 and th<!re was bright moonlight shining both outside and inside hut. P.W.3, likewise, said as. she came out of h,~r hut she r ,, cogni sed all the four ac:cused o They we re al so ch! ar th at, afte:r they tied th<~lli up and the .cattl,? were driven away the 1st and 2nd accused went inside the hut of Pow. 3 to sever th,::! tail w;-ile the appC!lJ:ant :st,ayr,ct put t9_ guard themo They roasted and ate th,~ tail ,outside close to wh2re the complainants wen~ tiedo It was th~ same two ac.cused~ they sa.i;d,. who brought forth th1c~ _flour for :cooking ugali ·and ·the 'milk as the appellant continued to k ,,~p watch on themo The apuellant in his brief, unsworn statement denied involvement in the robbery and attributed the all-~gation of the cc-rnplainant when naming· him to a scuffle bPtw,,en them about 13 y-,ars previously. He would however not elaborate·o AS conceded !:)Y.. t:hE{ app-~lla:nt in ·this statement, .he wa~ well known to the ,< d,)mplain:wit and his two wiveso Accordingly, given the circumstances dt::.scribed above, and barring deliberate falsehood on the part of <t1:t;;:, witn·esses, it is inconceivable, :t think., th,it- they could have~ mistaken anoth,~r p,-,rson for the app,,l lant ·and 'it is noteworthy that they named him to P. W 4 and the othr:rs who answered the 0 alarm at the earlie:st opportunity. AS t'<:=0ards the grud<Je, as rightly observ,::,d by -thi'.i'.-Jower court, if ever there had bc'.en any, ::i.t was too old to have s;seri the-'!.. ·cause of the complainant naming him, while it is pc,rtinent to note that he. madtiL.tl<i suc;gestion of a pre-existing grudge in his cross-examination of the complainant and the· 6ther witn•,sseso :r:_ am satisfi,,~d,, ~h,-:refore, thdt the trial court was justifi<;;d to act on their evidence· and rl'.~ach the ·. J:.. convicti6n, th,~ appeal aq,ii.inst which is,,hep"by dismissed. (%~,\ · . p,;; M. JONATHA~ •· .JUDGE ,. Delivered in t:ipen court this J,7th day of July~ 1978. --~".