19830126 TZHC Tanga2

IN THE HIGH COURT OP TANZANIA - AT TANCA APpELLATE JURISDICTION CRIMINAL APTEAL NO, 44 OP 1980 çoriginai' Czimina1 dse 'NO, 102 of 1979 of the......... District Court of I&s1oto District at Lushoto Before: P.Z, Kaga13...Esq. District Magistrate ... .APELLANT (orig, Accused) . .. ... , Versus; E (Orig, Prosecutor) tjf ._. .'.. CHARGE . bbo/a 26 ôf tho-.. P.C. Cap ~ Vo1 - 3. of the Lavve ." a, V , ilf Sisya, J: Apa from the oop1inàñt hinself thèe Were alèo PW2 and who testified that the-appe:itmn rushed to the complainant, ptxt his hind in cme of the ooniptainaxit's hind pockets and fished out caa1, 30C)/=, all, in S's '20/= currency noes The complainant reacted instantly' and sought to recover his cash from the appellant A. struggle ensued in the course of which the complainant was thrown to the round - He, neverth1ess, managed to eecue oiily' She. 200/. The appellant made away with the balance of She. 1001= which has not been recovered todate ks . .I his 'defence at the rial the appellant 'dhied being involved in ny incident with the complainant at all on AM6 material day , He however, conceded being in the same bar and at(theLsamo time as , : •.. , -. - pW3. PW2 PW3 , . . The learned trial Magistrate acceptOd t : pros0cation story and eed that of the defence - •e- 2 There can be no doubt on :the evidencG on record that PW1, pW2 and PW3 on the one hand and the appellant On the other were not strangers in the eyes of one anothcr. As a matter of fact the appellant himself told the trial Court that he and the compl'inant were cousine Nevertheless during cross...examination by the PiibicProseeutorthe appellant is recorded to have staten thdt­p,there was bad blood between hi=elf and the complainant; the two 6fvtheia having quaeled thrice previously. He appellant, did not e howeer, go further and state what the bone of contention was ontlie said three occasions The appellant went on to say s in crossexamination, that although he had never quarreled with pW2 the latter, nevertheless, lied against him because he was the comp1ainanta guest at the bar where the crime allegedly was committed. He added that pW3 too lied in open Court at the tri4 because he i4e. PW3 1 and the complainant are brothers, It is Significant to note that the appellant did not put any of these allegations to,pWl, pW2 and pW3 when the latter gave their respective tostimonie in the caBe, In the circumstances the learned trial Magistzte ignored these allegations as an obviois aLterthought I am in Lull agreement with the learned trial Magistrate on this point The learned trial Magistrate accepted PWl, PW2 and PW3 as witnesses of truth. Upon reading the record of proceedings ando ny evaluattpn of the evidence he cannot be faulted for so doing Like him therefore,. I also find the evidence of these three witneSses for the Proeecution, i.e • PW1, pW2 and pW3 1, to be a true and correct statement of facts Prom the evidence it is clear that :the appellant snatched the money from the complainant's pocket and thereafter he used force s as a result of which the complainanttm was thrown 'to 'the ground, in order : to retain the money. This, in terms of section 285 of the Penal Codes was robbery pure and simple .13 - I The fact that the complainant managed to retrieve some of his casoes not absolve the appellant in the least from Criminal liability on the charge as laid. The fact of the matter is that he appellant, had no claim of right to the money or a portion thereof All in all I hold that the conviction is sound in law and the same is justified and supported by the cvidence Turning to sentence, the one.imposed by the learned trial Magistrate is the bare minimum under the law; the offence of Robbery being scheduled under the Minimum Sentences Act, 1972:. In th final result this appeal fails and it is dismissed in its entire y . . . Deliv red. in open. Court at Tanga this 26th day of January, 1983 • kL.y (H.E.D. sj') Judge I.. -.e. 1