19790201 TZHC Dodoma1

- , IN THE HIGH COURT OF TANZANIA ' S ATDODOMA APPELLATE JURISDICTION • CRIMINAL APPEAL NO. 112 OF 1978 (ORIGINAL CRIMINAL CASE NO. 695cT 1975 OF THE DISTRICT COURT OF DODOMA) AT DODOMA MATONYA SIO MSASALA . . . . 0 • •• . . . . .Appeflant (original Accused) Versus THE REPUBLIC. . . . .-.. . . . . .Respondent Original Prosecutor) Charasl Robbery with violence c/s 285 & 26 of the Penal Code. JUDGMEN.T CHIPE TA, J. The appellant, gatbnya Msagala, was joitt1y charged with fi ~rè .otherd with the offence:of robber with violence c lss 285 and .. 286 'of the Penal Code., hey were all convicted as charged, and eaàh of theth was sentenced to seren years imprisonment. The appellant now appeals, but his co—accused have apparently not doh6 so,.- . • Briefly, the prosecutionts evidence was that at about 8.00 a.m. on l8th•Octo,ber, 1975',the complainant, one r'3igala Nkwalaji. (P.W..1), and his grandson, one Alois Chimwaga (P.W.2), who is aged 16 years, wert to.graze the complainant's seventy head of. cattle in the bush. • While so grazing the head of cattle, the appellant with five other persor2s appeared0One of" the six people (whom. P.W.]. and P,W.2 identified and who was the first accused at the triil) told P.W.1 that they were looking for their ldst cattle. P.w.1 then told the 'first accused to look around in the complainant's herd of cattle, Just then the other five culprits, among whom was the appellant, closed in on p.w.i and startedsliouting "l3eat.him Up!" Thereupon the appellant hit P.W.]. and the others joined, in and started assaulting P,W.1 with sticks. As they beat him up, they blindfolded him with a cloth and gagged him. Thereafter:..; they stripped him naked and took away his clOthes and his pouch in which was shs. 103/30.. While all this was going on, P.w.2 stood watching the • drama from a distance of about 15 paces. But after the culprits had over—powered P.W 0 1 1 'some of them turned to P.w.2. However, before they could lay their hands on him, P.W.2 took to his hccls and sought refuge' deeper into the bush. • Thereafter, the apeIlant and some of his colleagues took away all the cattle, while the other culprits led P.WO1 away and tied him to a tree. They stood guard over him till • at about 4.00 p.m. when they also left. Late that evening, P.W.2 reported the matter at the • village. Meanwhile, P.w.l managed to untie the ropes and remove -2- the gag and the blind, and made his way back home. .1. Of the six culprits, P.W.l knew the appellant and two others by name, .but he knew the other three by face only. P.W.2 9 on the other hand, knew two of the culprits by name, but knew the appellaiit and three others byfaceoñly. Subsequently, the appellant and one of his co—accused - (the thaccsed) were arrested by villagers, and cn being searched., the appellant ws found in- pdssession of the complainant's pouch which had been taken away from the complainant on the day of the robbery. When interrogated by the villagers, the appellant confessed t6 have taken part in the robbery, and he namEd two of his co—accused as having been among those who took artñ.the robbery. . hidfence, the appellant gave no more than a brief description f 6Vents ledding up to his arrest. After carefully . evaluating the evidence before him, the learned trialdtstriet magistrate accepted the prosecution witnesses to be truthful. Having paid due regard to the circumstances- in which the robbery took place, the learned man istrate was satisfiLd thit P.W.l and P.W.2 could not have ben mistaken in thcir idntification of the appellantand his co—accused, and he rejected the appellant's defence as creating no ruasçndbe. doubt in his mind. He accordingly, convicted the apell.ant and. -hs.coaccused as charged. - . . I am in no doubt at all that the appellant's conviction was richly deserved. The incident happened in broad daylight; the Cpi3 cliant was not a total stranqer to P.W.l and P.W.2, and, as is .cle.ar from the evidence of P.W.2 who watched the culprits as they over—powered P.W.l, the incide,t did not take a matter of seconds but sev?ral minutes -The two identifying witnesses, th....rafore, had ample tim€ and opportunity of observing the culprits- The possibility of mistaken identity. of the appellant, therefore, was safely excluded. Apart from the evidence of identification, there is the unchellonged evidence to the effect that the appellant was- found in possession of the complainant's pbuch which was taken away from the complainant in the course of the,robbery. A fortiori, the appellant himself confessed to his captors that he had taken part in the robbery. . As pointed out earlier, the appellant's defence was no • m than a.brief description of events leading up to his arrest. Even the appellant's . own witness could not advance the appellant's case for ho told the trial court-that he knew nothing about the case .. . . In his memorandum of appeal, the appellant raises a lot of inconsequential matters. After carefully considering the evidence on record, I am fully satisfied that the, conviction of the appellant was fully, justified. . . AS to the sentence, it was the minimum prescribed by statute. Indeed, the.:.appefl e int and his colleaguqs should consider •thcmselves lucky to have come out The circumstanc's were such as to have justified more severe sentencOs. It is witl- reluo.tanc that have refrund from enhancing the same. 0 0 61 - - 3 - In fine, this appeal is dismissed in its entirety. DODOMA B. • CHIPETA 1st February, ]7 JUDGE S