19830204 TZHC Tanga

/ t Ii THE HIGH COURT OF TANZANIA AT TANGA AppELiTE JURISDICTION CRIMINAL APPEAL NO. 45 OP 1980 0/F CR. App. NO. 46 OF 1980 (Original. CigIna1 Case No. 171. of X97S of t1 .,(Djstrjct Cou.rt'of Muheza DistrIct at Muheza • . Before: W.S. Mkulungu, Esq Djstrjct Magistrate 1 ALLY MDABWA • •. . S. . •'• • • • . 2 MOHAYjZD ABDALLAR.... .. . . . .APpLLANTS 341 1 CRAMBO. RAMADH&NI (Orig. Accuseds) Versus THE REPUBrAIC................ I RESPONDENT (Orig. prosecutor) CHARGE: Robbery with vólence 6/s 286 of the PenU Code Oap, 16 V01. of.. th Laws, JU D GEMEN T These three appell 4-its Ally Mdabwa, Mohamed Abdallah and Chainbo Raimdhani, were cha -ged with and convicted at the offence of Robbery with violence and they were each Sentenced to eight years imppsoment .ggrieved they are now appealing to this Court and their appeals are conso1ited -On-purely grounds of expediency I shall retain the descriptions pf the appellants as they apèared at the trial; Ally being the ffrst accused Mohaxned, the second accused and Chambo, the third accused: It wqs established by the evidence which, Incidentally, was not disputed a-t the tria ., nor is the same being disputed now on appeal, hat on the eveing of 6/11/78 9 at about 8.00 p.m., the house of one Chamdona Athumani (pW2) was invaded by gang of not less than three bandjts The savages werearmed with aegun. They stormed Into I . : 2 the house of pW2 aftel' dischai'ging a fiarm. which sent pW2 P. a. PW6 scamper±ng into the nearby bush. and PW6 were visiting p172 at the time P. too had a guna shot gun However, since he did and could not foresee what was in stock for him and his friends be kept the 4a±* gun inside .the.house of pW2. The bandits did not give M time to fetch let aldne use his gun in the attack. • The bandits entered the. hQusé and made away with several items which were hitherto in the said house including .pV.'s shot gun The Poljce hheza were notified on the. following day and investigatons started. No arrests were, however, made 0 As aforesaid this pi,.ece of evidence Was neither challenged nor contraiicted The learneq ti111 Magistrate1cep.tei it as true I also do the same as the oi& piece of'evi5.ence stands unshaken and I see no cause to diebéI1i1t .... Evidence was givei by one .Gidion Xollel (PW3) a soldier of the TPDP who a at the material time s was a militia Instructor attached to.BwembWra Sisal Estate.;to:.the .efçct that on 31/10/79 acting on ilZ.ormation received he. organised a group .of nine militiamen to lay ambush around the administrution offices of Bwembwe Estate: It waslleged that a gang of.bundits had arranged toinvade the said offices of Bwembwera Estate pzd s -teal the. money which was then kept therein and met for wages for the estate emp1oyees Twenty... five minutes after midnight he and, his squad spotted!,our personS who emrged from the sisal plantation and were hding towar the estate offices.. OaO ofthm had a gun whereas the others were armed with stioks . They were all almost in pui uralbus1..v4tI .p1y their.panties on The gang wassurprised..when.;it waaonly,fifty paces Of awy from the gang manag.to eSCape One of these,.ie.. the :.third.accused, was .neverthe1eS, arrested three days later The other two members of the gang, i.e. first I / 3 and Second accused 3 were apprehended there and then. The gun, a shotgun which they had with thm was seized and later identified, • through the records h1d in the Central 4rms Registry, Dar_es_Salaam, as well as directly, by :pWa, and pW2, as being that of PW1, and which was stolen from the house of PW2 on According to pW3 he 1ieW the third accused before, Though the incident took place during the night of 31/1Q/79 he got, close engh to the th±rd accused to reco8n'se him which he did Thereafter, a search was mounted against the third accused' Three days later the third accused was arrested at 'house in Mamboleo village The third accused made an attempt to. elude ?W3 an&.h±s men by jumping through the wall at the backyard 1 Hielattçrftpt?was, however, frustrated by prompt action by his captors. To my min'the thirdaccused's conduct at the time of hsaxrest corroborates the h.dence of pVi3 a in material particular that he, i.e. thirdaiccused,::was one of those who esc'tped on the night of 3 0/33J79;' In their respective stat?mets in dfec.e 'the fi±t accused stated that he was at Tangt on 6/11/78 and denied doing anything The Second accused said that he was at his home at I<ibanda on the night of 6/11/78 The third accused said that he was inArusha on that night. As regards what they allege trctnspired..än the night of 31J10/79 the account given by each one of the accused perSonS is the Same It is to the effect that the three of them and others who •• . -, .. L did not appear in Court at the trial cotxic.denta1ly pet at Kwafungo .• turn off Where each one of them had gone to board a bus to thcir respective destirLations. While they were So waiting a 1orrr came and Stopped Pour armed militiamen then disembarked fromlit 4, On seeing the said militiamen one of the would be passengers took to his heels. The militiamen gave chase while firing shots at him but the. man managed to escapee Thereafter the militiamen returned • . . eqssod sq.T put uoqatp.i.uoo peleptsuoo a&vt o. .rceddt! Ou seop ectv iw- peuxet et 'utod s Tq. uo petx.se. OIWA SaOSOU !~ T)A uo eta. et o agaTIT put gqa pttt çi TO eotzepTAe 91q4. UT 1.irod sTIUO UOTOTpOJUOO St1i. ST O19I.1L ,S aW14 TJT et'W et. .V urt qtrTuj u*q uoo ots etq. peTaava OtM pasnoou puOoes et4 stt 9,T q. tT4 pt 6 19ASMOq . eptw 9J3M 9SI1V $t. 91U13 et, q.v tT tm 2 eq. pt OtM uosied aqq. sum pesnoot qsrç; et. U cT o. 2UTpl000y UOTse9Od ueoe tq H JO e isçqs pezzet e puv.qnop etqtttose.I puoLeq a9vo a -ro -qq. OAO.Ict o. pe(; tzoT!.flOesOI a0AV S VTTV .xetvç 'uiIeddv et.t. Tuaddu ;o suoçd aTGxM u uo .iecTre .xtaA u eouetoTA .xo 9 0aO TM ung p T us et oOqs cqm seAeçt[. tflo aqq. peurns.xd eq .snw suos.xd pa s noov et puto. puut wo.z; sessvd t[çe LTOTtM 4.oeqo uu .OU ac mi2 t GOUTS quqq. et1t O. UO tZ9M .uoTq H • 8L/tt/9 Jo Tq2TU et iio uetO$ B)M tOTT.TM eUO 9T4 su peTJTUepT SCM 't•[ qTqxg l urL9etç. peca SVM a q. r-I q. s T-9 uK IVT peUJte[ o uemepr,C sçtu peo eoUe;O et trcm ponqo uenbesqns exaM Waqq. To ee.xtq. atq pu noq ostt sum pasnoou p.xTt. etj. xe.vt sAp ee.xt 'eo e UT peocE aaam iot, aaalqm uOi4ts etOa et, o uojv4 e.xe& pesoov ptooes puv qsaTJ et. STTur4u9AH peaaIa.x Uet puv peqeuT SM pesnoot pxt. 3tiL Tpaj.Tnussu, osTv Letii. WORm pesnqov puQoes put .sxj uo U pçts e q9, peoo; Vql 'tm2 t punoj pTpT.rn UeWtT.TTTUI et 'tq v W peddtim StM ¶ptzno.z atri. uotrt U$t. SVM t 0 Tt4M e2tiotd v sum qjnoo etfl. poq. pesnoov et pet.o.xtes TTV eXeM £et WTLT JO ep$trnOWt T1t peTUep 4Vetp eATn;eT. ou& perst aaam s.xeqo et. put eset.l O pssnoot puOoes put .s.rt; eT.jq .daoxe ptp esta a11o.ic.I0AO auloes 4.1 etiovd zot/sp 3Tq.UepTO. .uesaxcI esotq. TO 9UOLIeAO pe.xep.io put ctoq.s srq eq. of). .fr -. I I • consequences oxi the case for the rosecution I have s however, done so myself and I have s without hesitation whatsoever oone to the conclusion that the said contradiction has no valId consequence at all In my view It does not e even in the least affect the Prosecution Case at all, This is because it is abundantly clear on the evidence on record that 1I the aäcudd përsonS toe.ther with the person who managed toesóape and ran - *Way, were atthë material ' 1time actlng in concert and/th haring a cOmmOn nntion TI oxeth question as to. WhO held or carried un I i&teIai The fact 'Of the matter ib 2 thatin lav they WTe a l l oi tf the gun s •,, • H) V Exhibit p.,1•T • J , ..AlI:thd apeflants deijd at the riai b'ei othd in possession They: di1 the eL oi this frst pbaI. .E.:.According of the 'm to th& .frt.tuid ecbxid accused th& fti was jinsea OhHthem by the The learned trial Magitrate was not V impessed.bythe defencf story; Th same hardly raisea any doubts in my mind ei -ther These three appeQlants had the gun with them. : TheJApellants c Ontgn& i •thi± e ~ titiontj , of appeal that the said VgUnYWaS iot sufficiently ±d.ehtifiéSd. To say the leo.St this aruthentiS ridIculous The gun was identified by its lawful owner s PWl and pW2 who saw it before it was stolen. 1either of these V two witnesses was challenged or contradicted on this poirlt V The mat*rial qu tioithat noWrise are can s-the doctrine of recent possession be properly invoked In this case and, if So can these appellants be presumed the actual thieves? Needless to say, a gun is not a common article That being so a period of one year, to my mind, is recent enough to warrant the invocation of the doctrine Even then articles which are not common such as a gun s when held illegally, can easily pass from hand to hand under the same circumeta- nces In the instant case since the persons who staged the robbery / I on the evening of 6/11/78 were not identified and no other sto1en article apart from the gun was found onthese appellants I am minded to presume that.thes.e appellants are mere guilty receivers, rather than theotual•the.é. The learned' trial Mgistrate should, therefore have found them guilty of Rece1vingStoien Property cortrary to section 311 (]) o tI4e4erril Code, He diJ not, The law empowers me to d so on fipst aje1, I therefore find these three appellants .J'..- not guilty of Robbery With 'vid1enbe as charged but guilty of Receiving stolen Property and they are convicted according].y, Turning to sentence the offence with which the appellants stand convicted is likewise schedu1e under the Minimum Sentences Act, 19724 There can be no doubt on the grtvty of the offence The offending obaect was an offerleive weapon and the purpose of receiing it is too obviouss To stage armed robeies which are notoriously. on the incr,ease Thesentence of eight gears imprisonment is thus well earned and the same is hereby con±'iimed : All in all, except for the 'lterwitive verdict of guilty of Receiving Stolen Property with violence this appeal fails and it is hereby dismissed - Dlivered at Tanga this 4th Febxry 1983 ---