19811215 TZHC Tanga

IN THE HIGH COURT OF TANZANIA OF p . TM AT TANGA APPELLATE JURISDICTION, CRIMINAL. APpEAL NO. 32 OF 1980 • (Orignal Criminal Case No, 159of 1979 of the) • (District Court of Muheza District at Muheza..) Before: W.S. KKULUNGU Esq, D/Magistrate SALIMtJ R4SHIDI HAMZAMUSSA . 0 0 00 0.,APPELLMTTS (Orig. accuseds) Versus (orig. Prosecutor) CHARGE:lst Count: Burgiarly with intent to commit a felony C/S 294(1) of the Penal • Code cap. 16 Vo11 2nd Count: Unlawful wounding C/s 228 (i) = of the PenalCôdeCap 16 Vo11 of the laws JUDGEMENT • Siya, The two appellants were tried jointly, y the District Court •. at Muheza on a charge containing two Counts of Burglary and Unlawful wo.unding Both of these are offences under the Penal Code G. The • first appellant, Salimu Rashid.i was convicted on both Counts He was sentenced to three years imprisonment, on Count one and on Count ,two he was given an option of paying Shs, 1500/ fine or 2 in default of payment s to go to prison for nine months The second appellant, Hamza Musa, was convicted on Count one but acquitted on Courjttwo He ioQ was sent to prison for three years. I.:cannot forebear at this stage to remark tht the established facts in this äase clea'1y disclose the offence of p.ttempted robbery, As a matter of fact this is clear from the evidence of the complainant / . 2- V in Count two, Omari Mihanje ; who gave evid,nce as the first P.. V ., Prosecution witness,"' For uri1ioWn reasons, however, — not excluding sheer inconpetencyaiid/àr inefficiency — the learned Public Prosecutor who framed out the charge settled for comparatively lesser offences as shown in the charge as laid. This, per se, is disheartening Equally disconcertihg is the learned 'nial Magistrate's role in the intter To put it mildly, it was ptSSive Such conduct on the part of those entrusted with the administration of justice is dangerous in that asa re.sult thereof proven criminals may get away without adequate punibment. For example, without prejudice, the culprits in t1- e instant matter were armed, inter alia, with a panga and a gun Not only that.' Both these weaons were used in the assault which they launched. The two, appellants who were identified as part of the gang got away with a substantive term of three years imprisonment each Whereas had the proper charge of attempted robbery been laid in place of the one as presently laid the appellants would have made - themselves liable to terms of imprisonment of not less than seven V • years, each, under Ve'Mjjflj Sentences Act s 1972. Be it a,s..it may 9 the..onlr substantive issues raised in the V appellants' joint petition of app61 and worth any consideration by thiq Court are(l) whether the ProseCution proved its case beyond reasonable doubt and (2) whither the appellants were' denied their rights to defend themselves by the learned trIal IVLagistra:te Begir.ing With the latter issüe the record o.f.proceedings of the V ' , trial Court tells the lie of the appellants,' allegation that they were not allowed to defend themselves. The record clearly shows that each appellant made a' statement upon affirmation in his own defence and both of them riised the defence of alibi, It is therefore a blue lie to allege that both appellants ore. ther,of .them,were not permitted to defendthemselveS. This is enough to 'dispose of the second issue .13 As regards the other issue the question here boils down to that of identification There is abundant, evidence to show that the house of Juma Mehihiri (pW2) was invaded on the material night y a gang which gained access therein by thrusting a boulder at the.door frame Which then gave way PW? and his wife who were awakened from sleep raised an alarm They coitinued to do so the fact that the said gang fiid a shot notwithstanding However only . oe witness gave evidence of identification of the appellants in the caseThe said witness, Omari Mihanje (p) testified that he Imew both appellants before the incident, At the material time he rushed to the house of pW2 in respone to the alarm whiOh was being raised He had a torch with him and he flashed it to both appellants when the latter were coming out , of the house before ranning aWay Three days later he picked out both appellants at an identification parader The learned trial Magistrate found that both appellants were sufficiently identified In all the circumstances of this case be was perfectly entitled to come to that conclusion As aforesaid it is in evidence which was not disputed that both appellants were not strangers in the eyes of PWl Socondly, PW1 identified both 'appellants with the aid of a torch light In addition to this the first appellant assulted him with a panga.thereby coming even more close to him. Let me pause here and remark that in so far as PW1 himself said that he imew both appellants before the identification parade was superfluous All in all, on my evaluation of the evidence I am satisfied, as was the learned trial Magistrate, that the identification of both- appellants in connection with the offences charged was sufficiently established Turning to sentence, on Count one the term of imprisonment awarded to each appellant is the minimum under the law, i.e. the ..../4 - 4 Minimum Sentences Act,1972, the offence of biirglarr being echedule. • under that Act. In Count two, if anything the sentence errs On the lenient tide The coplainant had four cut vounds which were de scribed as grievous harm by the medical officer whO examined him I however, do not propose tO interfere with it Suffice it to say that for -these reasons this appeal fails and it iS hereby dismissed in its entirety, Delivered in open Court at Tanga this 15th December, i98i /1 t1 (i-i.E.D. Sisya) Judge. •.. •