19831104 TZHC Arusha

J' 1 ~ .IT' THE HIGH COURT OF TALZAIA AT ARURA APPELLA JURISDICTIOI HIGH COURT CRIMINAL. AIIEAL ISO. '44 OF 1979 ORIGINAL CRIMINAL' C.SE N0.425 OF 1978 • OF THE DISTRICT COURT OF IRUSHA DISTRICT AT ARUSfIA B7j FOR7 J.M, MSKAMLRI E,SQ, MLCISTRLTE ......RESIDENT MAGISTRATE FREDRICKLE'M.L ..... . ..'. PPELLANT ...... .. • (ORIGINAL ACCUSED) versus •THERPUBLIC....... ........ ..............R'3SPONDENT (0RIG1cAL PROSECUTOR) J U D G M E I T Before: MAGGL, J. The a'ppellant and one Johannes S aidi Nangu were convicted of robbery with' violence a n d assaulting a police officer' in due execution of his duty. They were each sen.tenced'to coneurrent sentences of 7 and 2 years imprisonment. Johnnes Saidi Ianga has not appealed. On 14th May 197,8 at about 10 p.m. 'a report was received at 1ruha police station that a group of robbers were -terorisingKijenge area in Lrusha townsh"ip A team of..armedpi'een, .inoluding 'Sergeant. Major Stephen ' (PW.1) and coxstab1e David ('Pv,4), rushed tO the a.rea While combing the area they met a group of about 6 youths -' who were 'atmed with 'a: varietf of wèapona.'" When called' upon to stop one of the youths threw an axe at the policemen and it struck sergeant major Stephen another • yoUtbthaew a bottle at the policemen and it'struk,"' Oonsab1e David. Both policemen were inj'ured. The' youth who threw the axe was arrested on the spot. It was the, appellant who was arrested there. -H1s"co'—acctsed was arrested the fellowing day. , • '- :' '''• Two civilians (P/.2 and PV.3)who accompanied the team of polictnen testified that they kn' the appllart and the accused Nariga well as close neighboirs. They deposed that' they identified thC two accused that night. and saw the apel1ant tw the axe and the 2nd accused' throw a bottle' at thm. The trial magistrate believed , the evidence ;of'identification of the accused parson by the two vv,itneses and convicted the accused person of the the assault. ' The assault on the policemen was clearly proved beyond dout by the mdical reports they produced. The appelant was arrested on the spot and his identification as the person who t.brevv the axe at the policemen left no doubt His pret\eetatlon of innocence in this regard is thUS 'WithOUt merit. Its for the charge of x 4 ob'bery, the: only witness in that regard was one Elias "inisi. H' ±estified that while sleeiñgr in his room he heard his door being broken. Before the robbers could' got to him he bolted out shouting. After the appellant had been arres'ted he went back to his room and fOund sh.1OO/- missing from under his materess. AJ-though I'1unisi alleged that his door was broken in the course , of robbery hi house was never visited by the police. Apart from Munisi himself no other person gave evidence .a'out the attack on him and the breaking into his house. Since the appellant was arrested in the presenCe of Izisi there was no reason for Iuciisi not telling the policemen of thq- alleged robbery that night. None of the two policemen, however, testified of having been infoxmed by Mtnisi of the allegerl robbery that night. The evidence of robbary'gainst the appellant and his coaccused was thus too 'veak to warrant a conviction'. The appeal against oonviction for robbery is accordingly allowed. The coviction is quashes and the sentence of.7 years imprisonment is ;set aside. The appeal against convictionand sentence on the assault count ia dismissed,. Urder the court's revisional powers the conviction for robbery against the appellant's co-accused Johannes Saidi Iianga is also quashed and the the ,senenceecn is set aside. B. H JUDGE RBM/lk 4/11/83 . '