19791123 TZHC Dodoma1

IN THE HIGH COURT OF TINZANIA AT DODOMA VA- t::s - APPELLATE JURISDICTION CRIMINAL APPEAL No0 171 OF 1978 - (Original Criminal Case No.203 of 1977 of the District Court of Kondoa, Before C,P.Urio, Esq., District Magistrate) NQHIWfED IDDI • • • • . . . . . Appellant (Original Accused) versus THE REPUBLIC . . . . S •* • . . .. iespondent (Original 'osecutor) CHARGE: Robbery c/s.286 of the Penal Code. J U D G N E N T The appellant Nohamed Iddi was convicted of robbery with violence contrary to sections 285 and 286 of the Penal Code and he 'was sCntencéd to seven years imprisonment. He now appeals, to this Court 0 On 18/1/75 P11.1 Ally Issa was in his house. with his wife PW.3 Hadija Bakari and PW.2 Rashid Mchana. At about 8 p.m. they heard noises of pople outside who demanded that the door should be opened. Ally Issa complied andhe openod, the door. As he opened the door he was confronLed by some three people who carried clubs and sticks. The ap - ellant was one of them and he vas carrying a club nd a :nife. whey entered the house and demanded money. hre was a l.srtern in the house which povided light. The prosecution witnesses said they recognized the appollant There was also moonlight outside. The complainant and his wife were bcaten up and so was PW.2 Rashidi Mchani. Cothplainant sustained a cut wound on the forehead and other minor injuries. His wife suffered lacerated wounds, also on the fore—j head. The complainant sai4 he, ,di ld, not have the Shs. 1 9 000/- demanded but there was Shs.75/— on the table. The appellant and his companions stole the Shs.75/-. and ran away - as people who had heard the alarms rushed to the scene. .12. It: 2 The appellant did not say anything in defence. He was perfectly entitled to remain silent. He now complains that he was wrongly convicted because the witnesses did not recognize him as there was in.suffiôient light in the room. He also says in his, memorandum of appeal that t'herO was no reason for the delay in his arrest, for if the offence .was coththi tOd in October, 1975 and he was arrested in April, 1977 this indicates that the complainant was not sure who had stolen his money as appellant and complainant live only to miles apart. First on the question of identification.. The appellant was identified by thre.e Prosèc.t±On Wftnesses: PW.1 .Pi1lyIsa, PW.2 Rashid Mchana and PVJ.3 EIadij. EaJcari 0 These were the people who were inside the house at that time. There was a lartern which proviaed"l-ight. in the room. 1here was moonlight as well. So when the door was open with moonlight outsida d there was a latern inside the house. this provided safficient light which enabled the witnesses to identify the appellant. The complainant said he held the appellant by the shirt and as the learned State Attorney, Mr". Tharbush submitted, this gave the complainant a closer look at the appellant managed to escape but he was idehtified by the Prosecution Witnesses. . According to the Prosecution evidence, the appellant escape.d after he had committed the offence. He was arrested on 28/2/77 but he escaped. He was, however, rearrested on 30/4/77. So it is not true that nothing was done until 30/4/77. There was no roson suggested and I can see none myself, as to why the withusses should have conspired to tell lies aga-inst the appellant. 1he conviction was based on the clear evidence adduced at his trial which the learned District Magistrate believed. The appellant was exercising his rights under the' law when he chose to say nothing at his trial, and the learned District Magistrate convicted -4on the strong Prosecution evidence given agr4nst the appellant. - . t -3- The sentence is the minimum prescribed by law and it is not appdllabie. This appeal is therefore diseiseod in its entirely. W. J., MAINA JUDGE Delivered in open Court in Dodoma this 23rd dy of November, 1979 in the presence of Mr. Iiarbus., learned State A ttorney. W. J. I'4AINA JUDGE