19841008 TZHC Mbeya1

I IN T}IE NG]I COURT 01P TANZAIA •1 AT iflllYfr / .f1. 7 1 ELLATN JiJUl :DICTTO3 7j IWGIOTRY) Cfl.L LLU:8LL I'TO. 51 OF 1984 ORIGI1TUL CRL•lLL CiUJ NO. 550 OF 1982 OP OF flT DICTRICT COURT OF N EYA DISTRiCT AT TLOLA Before: F.N.D. liateru, Isq. Resident Magistrate. TDALJICYf TALILU. APPELLANT sus TI. RPUDLIC , , . • • . • . • $ ,• . . . . . . .ES?OiTDE1'1T CHARGE: Robbery with violence o/ss. 285 and 206 of the Penal Code. JUDGflTdNT BAITU TI , AEDALWISYE WIiLILE was conv1ctd iilth another person who did not appeal of the offence of robbery with vio1nce cJss. 285 and 286 of the 2enal Code and was sentenced to seven years ±mprisonment. He is now appealing ageinat convictIon and sentence. The facts are that robbers vj1ted the home of Joyce Uwamona W,3 at 11 p.i on 9,12/62. They broke the door to the house by use of a big stone. They found I.3 and her siáter Efrasa 'wasonga P1111 there is bed. They ordered then to show where th money was. They slashed P',1 with something and her riit hand shoultcr was badly cut. They then collected various iterce of clothes and play64 radio, and stereo of pd,3 and left. They took a lot of other itemqk The property stolen was valued at 11,7 00/=. In thomorning PT,3 ieported the matter to he Police station, and to her neighbciuru imion '\akatage pW4 who was a cell loader got the report about the robbery. He went to the house of NO where the 1s accused •tubohile Zuberi was brought by some militiamen. The ane'au -: was -fee 2nd accused at the trial and there was yet a third Occu::oT called fnu1cc wakabenga who was acquitted. The let accused said that he nc: wi fe othei people in the robbery. The first accused tool: the natty to the houses of his fellow robbers. The party went first to Icg'nla where the appellant was found outside his house. They searched the house of the appellant where they found a big bundle of clothes and a small ationa1 Radio. Then they went to the housa of the 2 r5. accused whore they found a bundle of clothes in the latrine. I. —2-- Two Po)ice 0fficers also d alt with this case. hey were Detective Sergeant HaMbu P.7 and Detective ereant 1ajor Godwin, .M.6. 11J.6 found the 1st accused at Nzonwe in a group of people. 'e asked him about the stolen property and first accused said that it was at his home. Th they went to the home of first accused where they discovered al lot of stclen property. Th0 1st accused also told them he was with the appellant in the robbery. Ti1 they went to the 2nd s home where lot of stolen property was discovered. P 1 4 7 said that the 3rd accused was brough -b to thePolice ° tation and the 3rd accused told the oljc:ë that he had been with the first accused in the robory. Th e first accused as arrested and a lot of stolen property found in his house. P!o3 identified the various stolen items found at the hones of 1st accused, 2nd accused and third accused. She had put special !flarlCs on them. in his defence the a)êllati-t stated that the house where the property was found was of 1st accusd and not his as the appellant had just gone there to see his in laws. Ae dejd 1mowin: the 1st accused or to have taken part in the robbery. -: The learned trial 1agistrate convicted the appellant holding that tin property was found in his Iiose. in his ri ., ) TaoTnn.ndum of appeal the appellant said that there was no prc 'or id3ntif±cation of the stolen prOpe±ty and that the stolen property wa- uci fund in thehouse of the appellant. In court, Hr. Lateyun for the appo11ait explained to the court how three accused, personh were mixed up in their narnes while making their uefeaees. I have e:aujncd the record of the trial cou-rt and I arec with Mdh - 1 r .3ateyung'. that the appellant is hown as 3rd accused while making foncc and th 3d accused is hhown s 2M accused (appellant) while his dofnce. That this did not really occasioh any failure of -toe bec.:use we 101-1 from the record as a iho1e that the anpellant is t:.e one who claimed iri the aefence that he was just a visitor at the ................" was .aid jo be his 1 I wilt therefore simply go on to consider ti:'. angunients of he ape1laiit on anpeal c with . ate'unga for the appellant that the evidence pe1int unsatisfactory. The 1st accused who is said by the prosition witnesses to have taken then to -the home of lnt donlog that he did so. The 1st accused clearly says that he had two homes one Itenda and another at 1nyala where the appellant was fund staladingtside. It is not possible to treat the evidence 6 ..... -I - —3-. of tho rcscCutLOn witnesses that they were -bold by the 1st accused about the heao of the ayDellant as evidence establishing. whore the hone of the apeilant wa1. oere is no other evidence to establish that the house ;hre s±oe property was found belonged to the appellant. lhe cell leader of the area or some other people from t1- at area should have been called to teetify to the fact whether the house really belonged to the appellant. An mat-bors stand now it cannot be said that the question of ownership of the h:use at Inyala where the stolen property was found has beei ocred in any way. -. 4 t1 le above reaons this conviction cannot stand. i t is hereby quashed and sentence set aside. The appellant should be released from eustodr forthwith unlese otherwise lawfully held1 IbTJh. A. BARATI, Courts Judoent daliVered in court. Mr. Ba.tcyga for the a.:pel1ant, Mr. eeiaba for the 'epub1io. A4 BAIIATI, JtJDGb. 8.10.1984 -Th ri copy OF THE o:rIc-IMdL. I; DISTdICT bbGI1fP