19801031 TZHC Mbeya

IN THE HIGH ·COURT OF Tli.NZlllill AT MBEYA APPELLATE JURISDICTION CRIMINAL APPEAL NO. 17 OF 1977 , (ORIGINAL CRIMINAL CASE NO. 23 OF 1977 OF THE DISTRICT COURT OF MBOZI DISTRICT AT VWJMA ) RODRICK s/o MLONG,"tNILE •••••••••••• APPELLANT versus REPUJ3LIC •••••••., •••••••••••••••••• RESPONDENT JUDGMENT S.AMATrA, J., - On June 13, 1977, the first appellant, Rodrick s/o Mulonganyile 9 and the second appellant, Time s/o Nzunda, were convicted by the district court of Mbozi district of attempted . , • shopbreaking, contrary to s. 30'L and 297 of the Penal Code, and were each sentenced to a tem of three yearsr imprisonment. The first appellant was also convicted of causing.grievous harm, contrary to s.225 of the Penal ,Code.,. For that offence, he received a sentence of eighteen month's imprisonment. This sentence was ordered to run consecutively vith the sentence imposed in respect of the offence of attempted si1opbreaking. The principal issue in this case was one of identity. The case for the prosecution war that on the night of January 4, 1977, together with some other per.3ons, the appellants unlawfully attempted to break into the Old Vwawa Ujamaa shop and that, after failing to execute t_1eir missi<m, the first appellant attacked one of the shopt[' watchmen - one Langton s/o Kilindo - with a panga, ca.using him to suffer two cut wounds on.the head in the process. Langton Kilindo clnd ris fellow watchn}a.!:!- - one Arusha Kapungu- were very emphatic in tl.eir evidence t:P,a.t the .appellants were • t i' \ I \ 2 members of the gang which tried to break into the shop. Both witnesses claimed - and it was not denied - that the night in question was blessed with full moonlight. They also asserted that they saw the appellants from:very'short distances. Langton and Arusha did not menti~n the names of the appellants to the villagers who responded to their alarms. They explained the omission on the ground that they 1feared some of the relatives of the appellants who were in the group. The two witnesses mentioned the appellants' na.mes:on the following day when they made their report at the local police station about the events ol the night. The appellants and :~he tvo witnesses were residents of the sane village and the latterilmew the forner very well. The first appellant did nqt, in his defence, deny visiting the scene of the crime on the -nigh-i in -question. He claimed, however, :blia-Fl'ie nad '-made the· 'visit :,;in ·'fespons·k :<il;Q ;_fui --alan~ -vthi©h 6:fi~inated frbrii':the scene.c-:?ue cailed one witntfas.Lwho-tried tcFlehd ·s·orlie 0 §ti_ppqrt·nto · that '-'story;:;_-; The -sqcofid;·,appeilant's defence 2was ta:11 &libif '.,'He'.'iiss~rtea 'tnat ~at 't~e·::timer··:, th~·:,.,·atienip't:-t0 i'@)~eak the i •: 10 -,.-rrfui Teafuecl~'.tfial:'fuag±st:•:'a i~:,:!. treviei,,res. the-'eVidenceiit,Jfof!e film ~t:•some iengtfo' :>rte ~a:ceejtea Langson··:.ana Arusha as:i witnesses 3 1 8f ti-uthP'3H~::.,:.rAs also :ar::,th6 v!few:::that• th~: itw0· 'i,)i1f;i:J.esses-'eorrectly 0 -3:a'eiiHfi~d·:,the-"'-ap_p~ll~t~ iiE'r:b~ing riiefub~rs :i ofl·-t11edganif·~ihlcli''Y ;:,'::l.; ~:ria '!;6 ·break:: i.n"to ilie'~ shdpl,;- CHe,J·ejErC'ted' the appellants t r 0 -' a~feh~e·s.:,. -rTban· '.seelno:,rei:.fsoh why I -'shdul<:Ftake a,,;.ia{f.fe;r~n:t,;½e-wf 6hc-any' 6f:"-ihese· ;points°;':: Al 't;hcjugi'i-the i: a/ttem_ptea. 15r1:iakd.ng"!.. took 1 place;Y'ri'-t £i:g11·t,'~':th~:!-ey-ei-wf-bies·s~s had·-the'.beh:efit of Tu1t:,_fu00h:Ii'@-l't ;to· :Js'ee:' th~.: dulprlts ~- cl ea.rfj:~ )iThe. -appeilhl-l.ts wJre·: ho-t ''fs•tirartgei:'-S'·.~'to lK~~: wltn'eis~~'; ~·on•itfhe':''~piit±·fui:.yl th'e;f'i\i~er~•:•ve:i?y' -W'iffl knbwn ·by~iehe' t-l-'t! &i-trtets'es·tfull • of >sthemLbelng 'l'.'eS:ideh'ts: o:f 1:he :,same-' v:1•tailge/•'' • ·,.:•. .· ., . i-ci\J- a,-:-M · eofie'.f.::._r-- '. t1f't_1::H:::.,;,1¥.f:.,f:. ,.;_:'.l;.1 ~i- i-r[!i i: ~-{~ s.J~j•. :::N:,f '-..\t,oooc. • .. .,.,,. ,• • . , ➔ ,~c ••••."I· c• ( 1=" • 1·-.rf:'.;j•··';;.(.,"A .;: ', ~~~'lf: :!.,l~.:. ,•~ ':;; •:::1t{j· -,tJ.--,~J'X<f:... t3j·I'..-ff ~~~:, +cr-~1-:f> ·(··.t~:) HJ° ( · i' ~Zl.V "'!' -?in J d ~y•· :.t :fJ'!J: .'19\~ ..i. ~-,1.: tt!; · ]' .I. I' ·1 ·' ... • 3 I agTee with I'-'Ir Saffari, counsel for the respondent-republic, that. Langson and Arusha's delay in disclosing the fact that the appellants were among the criminals was satisfactorily explained by the witnesses. Like the learned trial magistrate, I am satisfied that the possibility of ttlstaken identity can safely be ruled out in this case. I would dismiss the appeals against conviction. I turn now to the appeals against sentence. The order that the sentences imposed on the first appellant be _served cons_2cutively;_ cannot be upheld and was not supported by Mr Saff0ri. No exceptional circumstances existed in this case to warrant the learned trial ma·gi- . strate departing from the well,established principle that, as a ' t •.I general rule, sentences imposed :i.n respect of offences connni tted ' ' ordered to run concurrently. in the same transaction should ce The two offences the f.il:'st appellant was convicted of were perpetrated "'"in the same transaction •. The s~ntences imposed itj-··:resped.t. -the·:r:·eof · s¥muld, in tne· -abience -of 0oge1~t :reasons;, have bceh ordered '.to .run·•::: concurrently. The '-learned trilLl- magistrate's order is.varied~· accordingly •. Tn all ,other re:i[)ects I am of the view that the . ' .. 1...,.: ,.I .' • · sentences which tlie appellant{ received' were ·richly d'eserved. · : ::. • . :.•-:; _j_ Save as to '.·to .the vari·2?t;ion made in respect of the two sentences imposed on the 'firdt appellant, both appeals ar'e :.':; I ;, .. di·smissed. . •'JU.DGE. ' - Delivered thi~ 31st day :o_f _Octobel?; 1980, -in thef pre:;ience .of J\'.1..r .. Teeuba, , • . ' •4• .( .. ' . JVDGJ!;. ''· ---- )::,·.,,L·.,. • • .;~_; ·: -.s.. •-r ·u~>x1-· ;· ·l. ·'.....1 .-, -.- ... ..o.t.[,j·u~fqi, '' ~'-• . - . - . ,. _/:<_:r: - .. .•.:r .. h-J~t·U.'ty.j_..( ;- - ,-1. . J ..• .L J' ~~GtS(~- -/{1 L) I( L G.;e,;£ ;- i ~ ~ / 1 p ~x - Cj[ ,l' L;,