19790618 TZHC Tabora

IN THE HIGH COURT OF TANZANIA AT TABORA. APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO 0 360 OF 1976 (Original Criminal Case No.,515 of 1975 of the District Court of Maswa District at Maswa - before C. M. SHILOGILE, D.M.) PETER KANUDA.....................................APPELLANT versus THE REPUBLIC................. ............. 1ESPONDENT CHARE: Robbery c/s 285 and 286 of the Penal Code J U D G M E N T CHIPETA, J: The appellant, Peter Kanuda, was cojiv1tei of th 'f robbery with violence c/ss and 285 of the Penal Code and was sentenced to. seven years imprisonment, the sta 47utory minimum0 He now appeals against both the conviction and sentence0 The prosecutioits evidence was that during the night of 30th November, 1t975, the complainant, one Kija d/o Masunga POWOIO.) was selling pombe in her pombe shop, and present there were several customers0 At about 8.00 p0m0 that evening, the appellant, accompanied by two other men, forced open the door of the pombe shop and matde their way into t1e poMbe shop0 Having entered the pombe shop, they started beating up people at random claiming that they were members of people's militia0 The appellant asked the complainant why she was selling pombe at such a late hour, and demanded that she should surrender all her money to him0 The - complainant would not do so0 Whereupon the appellant beat her up, grabbed her by the chest (where she had kept shs.10001=) and forcibly took the money0 The appellant and his colleague then went on a rampage. They went around taking away money from the customers as they beat them up. Having looted their fill, the appellant and his colleagues walked out leaving their victims stunned. Later that night the matter. was reported to police, and subsequently, the appellant, who was well known by the complainant and most of the witnesses present in the pombe shop, was arrested and charged with --- rv- The other two culprits, whom none ofthe witnesses had seen before the day of the --'-'. -i -- ...../2 The 2 / The appellant put up a defence of alibi 0 He claimed that during the evening in question he was at Maswa where he had taken his sick child for treatment, and that he spent the night there. After carefully rQviewin the ?ntire evidence, the learned trial magistrate accepted the prosecution's evidence and rejected the appellant's alibi as ; creating no reasonabledoubt in his minde He accordincj ly convicted the appellant as charged. On my own..eva-luation of the evidence, the learned magistrate's findings of fact cannot be impugned. In the first place, 'the appellant was not a strander to the witnesses. Indeed, he and the complainant had drown up together from childhood0 In the pombe shop there was ample light from a lamp, and the appellant and his colleagues 'were in the room for some timg. The evidence of identification, therefore, was overwhelming. I am equalli 'satisfied that the appellant stole the money and that in the'coure of doing sohe and his colleagues assaulted : the complainant ç and: her custoriiers. The only question for determination, therefore, is whether this .-was robbery. In order t9 prove the offence ofrbbery, the prosecution must prove that the person charged, stole something.; that ,.mmediately before or immediately after such stealing he used or threatened to use actual violence to any person or property, and tht the use or threat to use violence was with : intent to obtain, rtain, or to prevent or overcome resistancia d' its 'being stolen or retained In the., instant ca, it was..proved beyond peradventure that the appellant stole .th complairiant's money, and that immediately before, during and after such steaihg he and his confederates used violence on the person of the complainant.. What presents some difficulty is whether the violence was with intent to ain, or retain s or prevent or overcome resistance to the theft or retention of €he money 0 This court has often held :that general belligerent behaviour in which theft iE committed with no rational connection between the theft and such belligerent behaviour does not constitute the offence £ of robbery. (Mideree Bemeye V. R. (1968) H.C.D. n074), There must be a logical connection between the theft and the violence used, and such cr'4-.iori must not be remote either in time or ipl'ace. (Gathurijgma V. Republic rio rr' o - ..../3 In 4 1 4 - In the instant ro, .ro}- roconably be said that the vio1.nt conduct of the appellant and his confederates had no rational connection with• the theft. The evidence clearly showed that the violence, both in the marmer df gaining ingress into the pombe shop and the actual assault and taking of the money, was calculated to intimidate and cause fear or apprehension among those present in the bar and thus facilitate the theft. For these reasons, I would respectfully agree with. the. learned state $ttorney that the offence of robbery with violence had been 'established in the circumstances of this case. The conviction must, therefore, stand. Asto the sentence, it was the miffium p'escribed by statüte.:... This cotrt, therefore, has no power to edue it. As I see no reason for enhancement, the sentence will a]sq remain undisturbed. In fine, this appeal i4ismssed in its entirety. B. V.flI'ETA.. JUDGES Delivered in open courta€ Tabora this 18th day of dune, 1979. r V/ B, . d1I'PEPA, JUDGE, .4