19820423 TZHC Tanga

0 HIGH COURT OF TANZANIA jAT TANGA / JURISDICTION CRININAL4PPEAL NO, 81 OF 1980 -. c/P CR. APP, 'NO. 36'/1: •' S (0rigal Criminal Case No. 72 of 1980 of the (District Court Of Muheza. District at Muheza) Before: W.S. Mkulungu, Esq,.. D/Magistra -te RODA MAFUTAHA OIVIARI ADAMIJ., 00 0.00 OAPPELLANTS (Orig. accusés) Versus ' THE REpUBLIC:.0 0 00, ... 00000 0RESIDON.DENT (Orig Prosecto) • • CHARGE: Robbery *ith violence C/S '286 of thOPena1 COde Cap. 16 Vol. 1 of the Laws.. JU.DGEMEWT 0 Sisyà, J: •- .•• ', These two appellants were 1 on 30/9/80 1 convicted by the District Magistrate, Muheza of the offence of Robbery With violence contrary to sections 85 and;286 of the Penal Code and they were each sentenced to the stO.tutoryminimum of sevnyears imprisonment: The, offence of robbery beiiig scheduled under the Minimum Sentences Act, 197 2 They' are now apealing an.,:their appeals are consolidated; Evidence was given at the .trial.hy one Nuru Prank (pWl), a fifteen year old youth and.the complainant in the case, to the effect that on 12/7/80 at 3.00 p.m. his father one Prank Mtwale (pW2) gave him cash, Shs. ioo/=, and his bicycle and tol.d him to ride to the neighbouring Upare 'village, a couple of miles away, and bu him some cigarettes and locil liquor. This piece of evidence was conflrmE-d by pW2 •PV1 told the Court that on. the : 'way he was accosted by two ps0nS who then. got::hold of the bicycle as he trie& to ride past - . •0S them, As a result thereof he fell down. The two persons then assaulted him and searched his pockets before. making away with the Shs,, ioo/= and the bicycle. Acpordiig to PW1 the money was in five currency'n.otes of Shs..20/ eachwhereas accordirg to pW2 the Shs. ioo/= which he gave to pWj comprised of. ten Shs io/= currency notes. Be it as it may, after the attack PVl ran back home empty handed and reported-tematter to his father who, in turn, went and informed the Police accordingly In his evidence—in—chief PV11 told the Court that there were only three of them at the scene at the material time and that he reoonised both hisassailant. He, however, did not mention them by their names According to pW2, pW1repor -ted to him that he was actually attacked by four pers but he recognised, only two of them. Again, no names - .were mëntioned The.Police officer to Whom the report was made and who also investigated the case s no B7O93 D/C Elieza (pW4), testidied that he had receivd numerous reports from Mjesani and its ieighbouring areas that there was a ga1g of two persons which was robbing and terrorising the local residents, Among the incidents which were reported to hith were theft of e lndrover and theft of the complainant's bicy1e and cash, According to D/CElieza PW1 told him that he knew one o±his assailants and he mentioned the name of Roda Maftaha, one ofthe appellants who appeared as firt accused at the trial. PW4 tld the Court that attempts were then made to trace the said Roda ilLaftaha but without succes5 Eventually, pW4 alerted the villagers around the area to look for and apprehend the first accused. A few days later the two appellants were brought to the Police station Miiheza, An i dentification parade was then arrngedand conducted by Inspector Exaud Jones (pW3), Only one of the appellants, i.e. the one Who '!ppoared as second accused at the trial, took part. . . . - - •t / ' . •1 OLtO;0 oq. ;o txotstU1uIOo peaTit Otfl ;o 00F11 pU iup Ot[LUO OUOOS Ot[4. WOJ .IVJ aaam stxosied posfloot qritq. pLrpI .&tu oq. 4.qn0p otquOaco.x pesttx ou OA' U LI eoUpTAO oouejop 0tfl uoTtrçdo ut pewio; OAttl plflJ Jtfl;OJtO UI e49;q eOUOpTAO Otfl pe.IOpTSUOO OAtT —:pn sTt[ uxoij jqoim I pUtt -Rus OOr sTti. ptltj 9!~ L-a9 s T2uX piq. peuio1 et. SUO11Oddtt ot , uopuoo u esoo elq. tx -i: OOUOPTAO eATs qou . pçp squuiieddtt e pexJtt OT4m sl-rs.od io txojed etp tXOTqO7OIttt OTj. peçttop 'oqv ttutt.xttqi:)I tt e[3çT-oA JOOtII tt jo q;et. UT 4.aud OH aT4 qtttIq. pIOq sum °H tX93I qtt tteitt eWOt sTtI O. 1CtttA STLI Ito SttM .OT- e'TtjM JOTpIOS [[tL tt q Pc OJItt SUM OO OH 'Ta- IUTJO eLlq. 4.tt LULJ ;o t1tdtottxrq4J et Ut StM aLl qttIq pttJs pesnoott ptxooes ot eitto etjq jo trxq otI 1fl U Vjeqqoi pOOTiU U tflM U0OOIXU0O. UT POTUOP OH 'UOr S -. JOTPI°S tt q Pe1S8LIt' SUM OLj iUM OI ItO TUONAI oq. pop0000d putt oO/L/O uO- t2 uuj oq. euItiO OH OJOO1OW qtt sttM ot[ 001L/fU 0 uqq peoqs O R çqItt jo ooUOjOp posTUJ posnooc -sJTj 01 1 paA.XOs opttittd .ttts. etjq. 'SOOUII-StLrf101TO 0t[ ItT '05odxnd qu 7 @p,-a om otto qnotqtt apT,,jud etfl qtt UoT4Tsetl flOtfltM pOSfloOti PU000S at[. qno pOtoTd ca 6 eJO30JOl-I1_ 6 UTT1d1flS qou sT q j 'TUtISOCW U 21UTATT U0tfl SUM X04UI eI4 uaqm 9 L61 ut posnoot? ptx000s el-fl. MOUJ OH eO;oq posnoott puOoos 'a't '.WTt[ M9wj eq ptts ia posnoott puooes eqq. Lq pouoqSolTh U91.IM ptIJ 'OPVXUd UOTU3TJTtIePT OI-fl ItO pOpflIOttT q ou tflq.Oti SUM JOULXO] 0-UT-fl- PTt?S t& pOSTlOQU qsl a -; T el-fl. Aq peTmt?Xe —sSOJa.tI3 tt , pttittd UOtqUOTJ.UepT Otfl u stxttTToc[dtt tqoq poT;TqucpT. i UtJ1_ qno 01-fl- p10 putt IIAd qqoq TOUT00UePTA0 ITIfl u - 'UC13tTSOtt4flOLflTIVpOSflOOtt Ptx030S OWl- pOTfl4UOPT UttUTlYtdtUO3 etTa tzUuTt?durooel--oq. uMou3j. ITeM AIoA SUM poSrtoott sJT; oqq osnttoeq SUM STtfl çpdOq txTp.xOOOv - -- - I I - 4 - With respect, for a defence of alibi to be available to an accused person he dots not only have to establish, on a balance of probabi, lities, of course s that he was far away from the scene at the mate- rial time.1 Even if it is shown that he'was only .-ha1 a kilometre - even ha-if of that- away from the scene is sufficient The learned trial Magistrate Wentbn to Say:- "I am convinced that pWl and pW2 were known to the first accused bfore So they identified him cle.irly on seeing and hearing about him on-the day in question". With.grea -t respect,-at no stage did PW1 say that he knew the first accused before. The closest that PW1 said in relation to the first accused was when he said, "As it was during broad day light, I saw f my assailants -and. recognised them as these two accused persoiiS in - the doc kt. And, during cross-examination it Was only the second dccused whom he said he knew before. I repeat, he imade no mention of the first accuse'd. If I may. go further s pW2 did not, as a matte of fact, depose to seeing' the first accused on -the relevant day. He only heard his Son y PW1 9 . say that he recognised two of his alleged four assailants. No names were mentioned. Even, if they were, what PW1 told 15V12 was clearly hearsay -which is inadmissible in evidence and in other words, it has no' probative value. At any rate the learned trial MagiStrate talkednly of first accused. Nothing was said of the second accused and yet he je the learned trial Magistrate, concluded in his judemeit by Saying:- "That -being So I am satisfied that the prosecution has proved its case against the accuoed perSonS Accordingly I found (sic) both of -them (accused persons) guilty and convict thea as charged tt . S With even greatr respect, it -seems to-me that the. learned trial Mgistraté was satisfied "with wrong stuff" or, better still, on wrong principles. As aforesaid PW1 himse]I did not mention any names of his assailants of vhom he himself said that there were only S • 0 • 0/5 / two Shortly after the incident he reported to his father that there were actually four persons Who attacked him. This discrepancy was not exp1aine nor does the learned trial IViagistrate appear to have addressed his mind to it Needless to say, the offence of robbery is a serious one Evidence to prove the same must, therefore, be of the : required standard. In the instant case, in view of the discrepancy referred to hereinaboe I entertain Some doubt on PWlts honesty as a witness. It is not 1aown whether the learned trial Magistrate would have reached the same conclusion as he did in this case had he considered the discrepancy Since PW1 was the only eye Witness in the case s for reasons already disclosed I find that it will be dangerous to uphold the conviction. In the final result these appeals ae allowed The convictions are quashed and sentences passed thereon are set aside Unless the appellants are being held on sorigother lawful charges it is hereby directed that they should be set at liberty forthwith. Delivered in open Court at Tanga this 23rd April, 1982. Judge. t .' 11