19820806 TZHC Mwanza

IN THE HIGH COURT OF T~NZllNill ilT MWllNZfl. llPP:ln,Ll\TJJ JURISDICTION HIGH COURT CRJNINllL A PPNllL NO. 28 OF 1982 ORIGilUlL CRIMINflL CliSB' NO. 11 OF 1981 OF TH]' DISTRICT COURT OF mmnmm DISTRICT flT KllBINGO -- BEFORE P. IT. P. MLIIY E'SQ., D~pTR~CT MJ\GISTRIITE'~ ··"-; .. . . . . NYAI'iTllIMA MAGB'Sfl • •• ••. •-~-• • •• •·• • •• •·• •• • •• ·•••••••••••••• .Appellant ·· · - · · · - · · ·- '. (Original .Accused) versus THE RTI'PUilL IC •••••••••e••••••••••••••o••o••••••••••~•• Respondent (©riginal Prosecutor) CHARGE: Robbery with violence _contrary to section 285 and 286 of the Penal Code Cap. 16 Vol. 1 of the· Laws•' __ J_U__,_D...... G...,E'.-M-=-LN T -- CHUA, J. The appellant was charged with~_robbary with violence it being alleged that on 4/1/81 at about 11~ 130 hours at Guguyu v!llage Ukerewe Dia:nrict he stole one watch valued at 1,100 shs.; the ... property of Wilifrida Mazula and immediately befor._e the stealing used actual violence in order to olJtain the watdh.= The proseqution case was based en the evidence of threa witnesses. The complainant Wilifrida Mazuiia deposed that on the material day· she had been walking from the lake where sge had gone to draw water with her friend Winifrida Mwizarubi (PW 2) •' Ori the~ way she met the accused who was in the company of 3 other young mene' 'Ille accu~ed · suddenly told the c~mplainant that she had stepped on his toes.' He then Jield hir dress, slapped her twice and ·_snatched lier wrist watch .. plus 20 shs. Which was kept at her breast. The complaim:mt's story is fully corroborated by the cvidGnce of her friend Winifrida Mwizarubi. il report was made to thci secretary of the village who in turn tcf crred: the mattGr to the police. The accused was arrested and chargGd. The accused pr..omised ·to return the watch and hG did fulfil this promise as evidencea by Sgt; Major Magoti (PW 3) who saw the accused receive the watch :b'om a person who had come to sec him (the accused) while he was in custody and he then~pr educed it in court where it was identified by the complainant. The defence of thG appellant was that on the material day he and his friends had met the complainant who was with 2 other girls.; He and his friends liked the girls and dccieded to ask them to join them in a driIµdng session at the house of a certain lady who had pombe for sale.' 'Ille complainant and her· friends accepted the invitation~-- In the course of drinking the c9mp~ainant bought a bottle of pombc but left before she paid fo11 it. The owner of the pombe was told to claim the money from the complainant but when she failed to· pay _-_ she gave her watch to tho accused who promised to pay on her behalf.! The watch was security for ,;he price of the bottle.· But his evidence was seriously contradicted by that of his witnesses• Maximillian Mahendckn (DW 1) stated that he and his 3 friends went to .the house of the lady who had pomba f'.or sale and ·found the accused already there seated but not drinkinG•' The accused was then invi tad. to ·j,ofp the ••••• . ' •! ~- 2 group. lifter some time ·the complaim:m-t came with 2 girls.' They were invited by the ovmer of the house. The witnGss and the accused then imtitGd the girls to their company. The witness state~ that they drank until they found out that they liad no more money.· The complainant than orddrca-·one bottle of p:bmba and lGft bGf ore paying. __ When the owner of the pombe claimed for her money they told her that they had no money and that at any rate they were not the orie:s who had ordered for the pombe·.! The owner then followed the complainant at her home and reportcd_:_back that she had been told that Titus was to pay but Titus rcfusc:a~' The witness and the a ccusca-· thcin went to the home of the complainant and there the :i.later · }Javmcd her _watch as security for the price of the •bott.lc of pombe. She promised to raise the money but she did not sh;ow up. ~e ciccuse<l remained with tho watch until he was cirrestede DW 2 Titus Wanjclci on his pnrt first contradicted his colleagues . by st~ting that he found the· accused and Maximillicin (m-J 1) drinking p·ombee' The accused it will be re called, had stEllted that he and his friends had walked together to the pombe shop while·Maximillicin stated that he cind Titµs had walked together to the pombc shop whore they found the accused. Further contradiction in the eviuence of Titus Wanjala was his assertion that he and his)fricnds raised the money that __was required by the owner of the pombc .boforc the watch was pavmad. This fa.ct is not in the evidence of the accused nor that of Maximilliar4' 'Ihc learned District Magistrate did not believe the defence story and I think ~c was justified in view of the glaring contradictions in the dv id.enoa. ilnd after all why would the complainan-~ 1 pawn her watch with tho accused instead of the owner of the pombe who wns her creditor according to what the accused wantc:d the co\ll't to believe? !n his memorcindum of appeal the appellant claims that~ the evidence was fabricated by the complainant and her witness.' J3ut he was not able to cross examine her on that point and even his theory that the watch wqs· ·pawi.),ed to him was not put to the complainant for her to deny ·or confirm it•' There was no evidence: of previous relationship, amorous· or otherwise, between the appellant and thg complainant or the appellant . and ~. the witness for the complainant. ~ Finally the appellant arBued in-his memorandum of appeal that there was no mcdi9al evidence in suppo:bt of the allCgation that violence was used. .A.1 though it woula have been' a good thing to hav·e medical evidence on the assault perpetroted,:, absence of such _ evidence cannot be taken to· mcnn that no violence was in fqct used.• Muach depended on the credibility of the complcinant nnd her witness and as I have statad before there arc no circumstances which can make this coli.rt question the _decision of the trial court to treat their evidence as being tru~• In the resUlt I find the appeal lacking in merit and have ·to dismiss it entirely;; MWlUJZil