19840531 TZHC Mbeya

7 IN THE HIGH COT OF TANZANIA A.MBEYA APPELLATE JURISDICTIoN HGH COURT CRI1VIINAL APPEAL NO.25 OF 1982 (0GINAL CRIMINAL 0ASE NO.79 OF 9,Pql OF THE DISTRICT COURT OF MFAI\DA DISTRICT AT MPANDA - _1 3efcrei A. Mohamed Esq,, /agisate) HARUNA KASELE.............. . . , , , ,., .. , . APPELLANT versus T HE RJPUBLIC . , , ,,., ....... . .RESFONDENT JUD GMENT CHUAJ O In the District Court of Mpuada foui persons namely Faustine Kasongo 9 Juinmanne Ally 9 Hussein0mari and Haruna Kasele were jointly charged with two counts of robbery with violence c/s 285 .&' 286 of the Penal Code. were convicted and sentenoed to 8 years imprisonment in each c'.int - sntences to run concurently. This appeal has been filed ; by Haruaa Kasele the 4th accused in the trial c.ttrt. There v'oa Irrefutable evidence that the two victins of the r9bbery' namoly au10 1ilimánjaro and Samson Monge were indeed robbed an 13/5/81. Aording to Paulo Kilimanjard (P1011) on 13/5/81 at abOut 8030 pm. he 'i in his shop at Ibindi areachotting with Maulicii Isa (PV3)0 tran,quiii'rwas invaded by a group of 5 rons who wo millitary and militia uniforms. These iwaders carried. a gun and sticks 0 They ordered PW1 & PW3 to sit down. At girn point they carried out a search fr money and goods. They took cash 38,000/= shs 09 3 cartons of hula soap 9 8 outers of batteries, and 6 cigarette boxes. They forced. their victims to 'carry the lot 'for them - apare-ntly tO :a spot they had left their mitsr vehicle. On the waY, thai inved the h?use of Samsan Moiye by breaking the door. They also fired several rounds of r000nition in tha air to inhibit any response from i aid, be eager neighbourc0 'From Samson Monge they extracted cash shs.8,410/= an. one .Mortima Wrist Watch.. Before they could leave 9 aord had gone ruiJ the. neighbour- * I - 2 - hood that conrary to what these people wero claiming to be they were robbers0 A big group of law abiding citizens . . started to pursue these invadors, The 1st and 2nd accused were arsted and handed over to the police. The 3rdaØottsd and 4th accused were arrested later in the same night as they were found on a road. In his defence the appollant.tod the trial cdurt that on the 8/5/81 he travelled from Kaliu. to Piipanda. He ar±ived at Mpanda on 9/5/81. On 14/5/81 at about 10.00 a.m, he was walking near the Remand Prison when he saw a vehicl stop. he He was arrested and sent to the Police Station wherLWs charged with the other 3 accused persons. It .is obvious that the issue for determination in this case is. whether the appI1ant was properly :Ldeitificd Paulo Kilimanjaro .(Pwi) and Maulid Isa (Pi.) stated that they saw the appellant. PW1 explained that th.re was a ketrosone lam lighting in his shop that hight and that ho ws able t. o dee the. appellant who carriod a stic that day,. He furthbnndre explaiied that. the robbers took a long tim to ransack his shop thus guying him ample time to abserve hem2 .. ,Beids the evidence of 7Wl, pr6 Samsb:i Jjçg o stat that before thC iight in çuestion he krow the lEtaocuscd and' the. appellant0 H was oven ahl to montion th: iiamo of the uncle of the appellant0 It is therefore do ir that the identification of ti-is appellm..t was properi:T done and ±s. beyond reproaOh. I am therof ore satisfied ti-is appellant was properly convitçd said the sontonc.e if anything was deserving Tho apl is dismissed ciel . ..' L.J,R, CHUA At Mbeja 31/5/84 LJRC/AT lina,