19850806 TZHC Arusha

IN THE HIGH COURT OF TAI'IZANIA CRIMINAL APPEAL NO. 113 OF 1979 ORIGINAL CRIMINAL CASE NO.61 OF 1979 OF THE DISTRICT COURT OF MOSHI DISTRICT AT MOSHI BEFORE: M.U.J. MINJA - DISTRICT MAGISTRATE GASPAR NDASIKOI •0 . APPiLANT (Original Accused) Versus TrIE REPUBLIC ,...,...,.,, ......RESPONDE (Original Prosecutor) J U D G M B N T CHUA, J. The appellant Gaspar Ndaskoi was found guilty of robbery with violence and sentenced to 7 years imprisonment. He is aggrieved by the conviction and sentence. The facts of the case were simple. The complainant Fatuma Abde.i (Pw2) deposed that on the 25/1/79 at about 8.00 p.m. she was in her small shop cooking. The door of the shop was ajar. As she threw out some dirty water, she saw three people outside. She inquired who they were. One of them said he was Gasper and there and then forced himself into the shop. He caught her by the neck and pushed two fingers into her nostrils in an attempt to suffocate her. He then threw her down and piQlced up shirts, hair oil and money Shs. 575,/. which was on the table and wenlout. As he was going out the complainant caught his shirt and at the sane time crying out for help. He managed to free himself and got out with the things. As he was going out, All Selemani (F0) and Melkior Balthazar (Pw4) arrived and attempted to catch him but in vain. A report was sent to the police. The appellant set up an aJii& contending that on the material day he had been at Moshi and not at tLatala Himo, the place the crime was committed. The issue before the trial court was whether the appellant was sufficiently identified. The appellant was well knon to the complainant and PW3 & PW4. The complainant saw him in the shop and was able to mention his name and show the police where he Lived. On being arrested the appellant was found with a shirt which 'ias identified to have been the very one he wore on the day the offence was committed. The shirt which had been torn in the struggle with the complainant, was not only identified by the complainant but also by PW3 & PW4. ...../2 In view of the - 2 - In view of the evidence of the complainant which was corroborated by that of PW2 & PW3 and the fact that the shirt was found with the appellant I have no reason at all to doubt the identifiotion in this case. That beixg the öase, I find the complaint of the appellant that he was not properly identified unjustified. .1. accordingly dismiss the appeal entirely. L..R, CHUA : JUDGE 0 / 6/8/85 •,