19800208 TZHC Morogoro

• • I I. iutsocI 'peo sqjpxx e q tt'Lo UOtM tpTtrIq OtTq. aptstrr S1tA eq in- PeTi e3JttXO '(9) eo.iopr eo;tuoa ;o qn.4 et eod quePtOirç 9t 33(tUI SOTTTA. CtfOr eonpoxd XTetfl PTOS P1.T J1.fl. ETSII OTAGTd sRp e; PIPT •U0S19S DuTq.SGAMtT atfl. SM SS squiqs Itetfl. lit • S !~ MT 14.jTtTSa3je rJ ITt PUTATT Utfl OaOM SUT.OTA. 8tJ 'pezee.00ex qou sem .ic.ec1od aifl •spxos o. puc tOqAA '/OOOT'SLTc tTSO lTq-Tm Rt3tM epu spucq et •suinn BOZ8Utp tO srohaTa9 PDUT P qSrs sIBtflO TSJ UPST q-JOT PUB pe30Bq4B ATsnoToi. GM SUtT.OtA etT. 3o eu •eqtepsuoo eq.trib SBM Sq.pUBq OtTq. Abq pe.UflOui OOUeTOT!L eLf -0 ,1 0 2? 0 ,TOlq ;o UOTDOU pu ottxqstp 9tfl. UT TUIR Tanl t ITCLfl peBo SOeTd B 4 6L6T'R.tBnuBr .gT/tflLT J O .ttu etfl. ITt peuedcIt Squ qpT3UT at •s.tzdTno eq. ;o ce --rq.uept eq peueouoo etisç .A -tuo etJ •eotnd sexeqqoI oM. oi AsAOxUOO Ut qou GBM ITOItIM eouopti.o eTdwB Sem OTOtT Lj • -rocIdB jo SUoTT.Od ITelfl. uT Pei.s spunoi1 Otfl. UO '.1rOO Tfl. O. trtBOdcIB MOU OI A'at. 'pe -rsrsst •itec tei.es xo; uewuosticIwt oq. peoue.ues sM.tJo.cj •seoue;;o o atfq. ;o potio6pu6- . AOI.TT plXflO OXOM SatTq tBtt. TT4 B IOO..P3 PUB 'epo3 uea otTq. 30 9çJ PUB g93, SUOT.OrOOS O. ciIquoo 6 31eqqor eqrtop TTM POZBtTO ST I-UTOC aaem TSH TSTWBH PUB TT°M STOUtIff 'p1uxo tBOsBa 'et1O.STXU3 setzBt3 Sq.Ue0ddB TI 'P.t3PTT of l o ff roj clrrlq -ouoo ueaq 8&BtT GTBedcIB xnoj eSOt1 - iNwocrnir - #Smeq OXTI. .O I 8IUTITOA 91 'cIB3 OPOD iuea et. ;o 99 ptxe ç suotqoes O. JV.tBUOO eoueToT1 tfl.TM Lieqqo - ! ~ tmoo pU .GMBrI Ot o T 8U1nTOA 9T'BO epoç Tnu9 cl OW. 30 99Z PUB GUOTOOB o. 31IO.UOO 80UOTOIA TTTM iVieqqoj - .Imoo q.s :jrj $ 06*44. ' . 1 0 1 1 00 0 1 0 OI'i&IH H1 stlBlBA ' 0 1 1011 rrIiaar tHa1o1IaHO 'nrTHo •BS-t qotxst ''bs 'oqun2iV 'I•p eio;o OOfJO1OW fT LOIL1Ict O1OfJOHO1\I d o 1TflOO LOI1I[ 6L61 d o LH'OI ET3 77 MIMUD TTNIODIO • '6L6To q LT V LLT 4 9LT • OtI TTLaaT P7MIWI1O 1iflOO HDIH - • • • - 2 - as militiamen. They ordered him to open the door and when he refused they forced it open'. He observed that they were carrying two guns, a dagger, a club and torches. They ordered him to take them to the huts of Severin Joseph and his brother Separaritu When he displayed reluctance they pulled him out and gave him a severe beating. Thda they left and proceeded towards the hut of Severin, without taking anything. What happened at the hut of Severn (PWl) was the subject—matter of the first count. Severin and his wife catherine (Pw2) told the court that they were in bed when, in the dead of the night, five bandits raided their hut.: The bandits demanded money after which one of them held and hit Severin with a panga. He dropped down and lost consciousness. His wife Catherine (PW2) took up the story' and stated that after her husband had been assaulted the gangsters started searching for money. They found it in a jar and took it. When she tried to raise an alarm she was forcibly taken out and sexually abused. Then the gang vanished into the night, taking away a sum of Shs.10001—, a wrist watch and a sword. Next it was eparantu's turn. It was almost the same story. Separantu (PW3) and his wife 1nastasia(PW4) were woken from sleep when the bandits broke into their hut. They assaulted Separantu with a panga and they took his money which he had kept in a bag a sum of Shs.300/—, and left. This incident constituted the charge on the second count. I have observed supra, there was no denying and it was clearly' established that the two robberies were committed in that night. The question was whether the appellants were involved in the crimes and that boiled down to a question of identification. dill the victims implicated the appellants. Boniface asserted that the four bandits who descended on his hut in that night were the four appellants, who were familiar faces. He said the first appellant Charles was holding a dagger and a torch, that the second and third appellants, Pascal and Francis, were wielding muzzle guns arid that the fourth appellant Hamisi was carrying a rungu. He alleged that it was the fourth who dealt him the blows. He said 4 - 3 - he recognized them as there was moonshine.. J.s for Severn Joseph he stated that the bandits shone their torches inside his hut and that he saw their faces and heard their voices.. He said they were all old acquairi- - tance and neighbours. That was also the allegation of his wife Catherine and his brother and sister—in—law- Separantu and .Lnastasia, respectively. LU the appellants gave short statements and denied taking part in the commission of the offences. The first appellant set up an alibi. He claimed that at the material time he was far away at NUhO8Q in Tanga, Hegion where he had gone to see a sick relative. The second appellant alleged that he did not leave his house in that night and he brought one of his two wives, itumai I1kekale (DW3), to confirm his allegation. The third appellant explained how he was arrested on 18/1/79 and how he was taken to the police station and locked up. He did not say a word about his movements in the night in question. The fourth appellant stated that he was at his home, when the robberies took place, attend- ing his sick parent. He did not know why he had been implicated in the offences. The learned magistrate believed the prosecution witnesses and was satisfied that the appellants had been identified beyond any possibility of error. The appeals challenge that finding and urge that it be reversed. Lpart from that, the appellants Charles and Francis complain that they were denied an opportunity of calling witnesses who would have supported their alibi. I have carefully examined and weighed the evidence and I am satisfied that the judnerit of the learned magistrate is sound. I share his view that the evidence adduced by the victims was credible and positive enough. I think the condition which attended the commission of the crimes was favourable and facilitated a correct identi- fication of the culprits. It was not in dispute that there was moonlight in that night and as we have seen the bandits carried torches which they flashed around at the scenes. Besides, all the appellants were familiar to the victims and there was no suggestion that any of the victims was otherwise ill disposed to them. With rsgard to the 4/. • El r1 -I allegation that two of the appellants were unfairly , deprived of theirjgJ2t1 to call witnesses, there is siiaply no truth in its The record shows that each was asked if he had any witnesses to ecamine and each replied in the negative. I see nothing which can lead me to call the genuineness of the record into questions I think, therefore, that upon the whole the convictions were well founded and that they' should be sustained. Ls for the sentence, the only serious criticism which can be raised is that the learned magistrate imposed an orinibus sentence on each of the appellants. This was unlawful. There should have been a separate sentence for each count. I will rectify the error by imposing on each of them seven years imprisonment on S each count to be served concurrently. In conclusion, I dismiss the appeals in their entirety E, set aside the omnibus sentence and impose sontences as just indicated above. Delivered in Court. Lppellants absent Mr. Safari for the iepublic. Dar es Salaam (D.P.M1PIG.LNo) Judge. 8th February,1980.