19850918 TZHC Mawanza

I.N. TEP, HJ.GR COURT, O;F TANZANIA AT MWANZA. AHE.LLATE JURISDlCTION · HIG11 COURT CRIMi'l1AL. Afl:-·EAL NO. 95 OF 1984 ORIGil~AL CRIM1NA1' C4.SE, No.· 113 OF ·1983 OF TI-Ti DISTRICT COURT K·;JIMBA DISTRICT AT NGUDU Befor·e '' G. B. KAJUNA, Esq. District· Magisttate. ~IGEA s/o LUBOdtJ A • ~ ••••••• ,' •• ; .-~ ~ ... , • • • • • • • • • AP PELLA NJ).... •· · (Original Accused; Versus THE UNITED R.EFUBLIC • • • • • • • • • • • • • . . • • . • • • • • • • • RESI ONDE'NT · · (Ofiginal Erosec~tor) JUDGMENT MUNYERA, J. The appelLrnt was charged with robbery. It was stated on Prose- cution eide th1t during the night of 24/6/84 the complainant, a woman called Ng'washi rJhsag3 (L W. 2) was sleeping in her house adja6t:1nt to· her son (f. W.1) 1 8: · Gun shots were fired outside, then f'. W. 's door was forced open and 'c:i'. :gr.q_up of people entered. Th'.) commanded the oci.u- pier Kalwingi Ng 1 H.JShi (L :;.1) to give them money. They did this at gun point. The witness said the had no money. They themselves searched everywhere but they could not find any money. Th~took ~im __ out and they forcibly entered his mot·her (P. W. 2) 's house. There they demanded money from the woman 1nd she gave them Shs.60,250/-. ~hey made away. The alarm was raised nnd poeple gathered. The complainant (i:. W. 2) :=:ind her son(~~ 1) named the appellant as one of the robbers Rnd they said it was he only they could recognise among the group. He was arr~s~ed ~nd charged. In his defence he denied to have taken part in the r0tbery and stRted that during the material· night he was sleeping in his house with his wife. People knocked at his door and called him out. There they told him he hc1d been named as one of the robbers. They arrested him despite his denial. He called two defence witnesses; tie wife (D. W. 2) and a relative Seni Lu.nyilije (D. W. 3). The trial magistrate heard the whole mutter and came to the conclu.sion that the appellant was gu.ilty of robbery and sentenced him to the statutory minimumu of seven (7) years imprisonment. He appealed to this Court. He argu.ed that the evidence adduced by the prosecution did not prove th~t he was one of the robbers. As usual the main issue before the Court was the identification of the appell:rnt. The two witnesses (L 1'i. l and F. 11. 2) said they i'den.- t ified him bec1use they knew him before. According to their eviden0e the. robbers first entered F. w. l's house. The_j,p.em-:1nded money but the ······•oooGOOC0/2. l --- 2 witness said he had none. Almost all of them had torches which thPY shone to enable them see what they wanted. After they failed to get anything they took the witness (F. W.1) to his mother (P. i'J. 2) 's house at a dist,3nce of 20 paces. Again they entered the mother's house 1 nd remained there demanding money and shining to_pches. The torch lights made the codntiions of identificati~~~avourable. There was evidence of Charles (P. W. 3) and the mgambo John Samso·n (F. W. 4) who went to the scene in response to the alaTm. They sajd the witnesses (P. W. l and P. w. 2) had mentioned· the appellant as being among the robbers. The mgambo (f. W. 4) nnd· other people went to the appellant same ~ight anc:;. arrested him. This immediate mentionitjg of the appellant to the people suggested that the witnesses were quite ~ur~ of ,his identiti~ Like the trial magistrate r ·am· ·s·atisfied th:3t the -wpellant wr.1s amply iden- tified ,3s one oftthe gangsters who robbe.\i the complain,:int. He was rightly convicted and the sentence is in order. -1 dismiss the appeal in its entirety~ ,,. ?/' . ·. .)1/J,L ._ F. A~,:/-r·lVIlJNYERA JUDGE. --- -• > .. ,' ... '