19791219 TZHC Dodoma3

IN THE HIGH COURT OF TANZANIA AT DODOMA CRIMINAL APPEAL NO. 115 OF 1978 (Sriginal Criminal Case No. 6 of 1978 of the District Court of Mpwapwa at wapwa) - - Befre: A.M. Sanga, Esq, District Magistrate charge: Robbery with violence c/ss 285 an' 26 of the Penal Code. JUDGMEN MAIN, J. The appe 1)-ant Boflif ace Mas . anj o...wa.i. coiWited' ittpWa District Court of robbery with; violonc contrary tcti:ns: 25 and 26 of the PnDl Cole ani he was seatnce 1I t - seven years imprisonment. He now appeals to this Court-aginst tha' convi•ction - and sentence. ; IThe Prosecution case was that on 40/4j77 the appell ánEwer to the cmplainant's house at Mangwct VillLiT1 Mpwnpwa District and asked tc stay th' night in the house. Th e cempliant ri P..W.2 Htibu Ludege5and his son P.W.1Adam Cd.d not knoW the aP5ellan€ béfthre but s good Sdrnarlt3ns they offero' thcl, ap ell-nt a pl,xce in their houSe. where,, the appellant spent' the .'night On the' next day,' 11/4/77 th appellant acc5ompaniei P.W.1 and POW.2 on their way .to NcikUtupa village. The complainant P,W..2 'Hatibu' was cat'rying 'his shtgtm.On the way when .they.r chud'o vill;aqe called.Matomondo,' the • corplainant sat down to smoke a cigarte when the' stole the gun from complainant's shouldr.."Appei1t ran awy'and éIlart ... he Was chased by P.W.2 Adam. The appeilthit.stoppeci, 1oade1 the jun / and threatened to shoot P.W.2 Adam. Understandably P.W.2 Adam had to retreat an -i the appellant rant away with the gun. The complainant anrl his son reported-'.the matter to the Ward Secretary and to police at Mpwopwa. Th. gun was pitked up on 19/8/77 and was sent to the Ward Secretary P.W. 3 Jackson Mnyenjwa who called the complainant ari-:. the latter identified .t. The appellant told the trial court that on i1J 4/7,7 he wa at his home in Shinyanga. He was arrestd by pblc2' in iay 19Y7 and later imprisoned for ancther off..anca. In his me.mranduin ofppè1 -: the appellant claims he was arrested on suspecion .on].y'ahd ... that the complainant Ad his son ware not sure of the iAenti' of the person who stole the gun. S . I The main question is whther the appellant was sufficiently I. identified. The ccmplainant and his son haJ a long time with the appellant frbm the timth ppdllant went to their house arid skedf± laéto sle'ei5 ilnull the next day when the offence was committed. The com.:loinant stayed with the appellant 1fc5 such a long ti:md that I'onnot pâi'b1y think there Was a mistaken identity0 Thàp1iel1ant hod fcowithP.W.J. and P.W.2 and he .teyodPthe whle 'night in thcir house. On the nt day, they set out on their journey at 7 a.m, and the offence was committed in br ad daylight when they were taking a r'st I entirely agree with Mr. Alimwike the learned Senior State Attorney that there is nc, reas n to disbliove the o.vid... of P.W.1 and P.W.2 These witnesses CliP flLt.know the appellant before and so there would be no reason for them to frame up the-ppellant. A'ter all, they welcomed him in thoir h'use and gave him . foQd and Sccomodation the previous night. .. .:;J','O. The learneJ District Magistrate who saw and heard the witnesses was impressed they were witnesses of tr -oth and this Court finds nothing on the rec rd t lisagroc with such i iniing. The ape,3lant's •'e statement that he was at his home. in Shinyanga on .e material - iosUprted by any evidence and it was proper1r,eje cted. The witnesses said they clescribd the features of the appellant and this enabled the Police to trace hi'i. The ajpellant Was pr-perly cnvict -n the sentence is the minimnurti prescribed for the (ffonc. This appEal is for the fcrguing rFsens, Clsmissed. Mr. Kharbush, State Attorney for Republic Appellont present in person. .."o •. ., -J.o