19861030 TZHC Mtwara 1

IN TH£ HIGH COURT OJ:' TANZANIA HIGH COURT CkIMlNAL A~2EAL ~O. 1 OF 1986 Original Criminal Case No.120 of 1985 of the District court of Masasi District it Masilsi Before CoHo Msamati, Esq., P.O. Magistrate PIUS GABRIEL 0000•0•0•00••·· A!?PELLAN':i:'S RAPHAEL RAYMOND Versus " THE REPUBLIC ••••••••••••• ,, • • • RESPONDEN'i' J U D·· G M E N T RUBAMA, Jo PIUS GABRIEL and RAPHAEL RAYMOND were charged ~ith attempt robbery contrary to section 287 of the Penal Code. Bach was convicted and sentencec to 7 years imprisonment,, Each has appecled against the conviction and sentence,, The evidence clearly established that one Herman 1v1konga was on the night of 8th October, 1985 assaulted by two people who also searched his pockets looking for something' to stE:)al. The evidence furthL:r established th:it these two people managed to escape being caught by people that had responded to th0 cries of alarm by Herman Mkonga. The prosecution hus submitted, a submission that huci been uppeld by the trial magistrate, that the two people thnt had assaulted Herman Mkonga were the two appellants. each of the appellants hud rejected the prosecution subnissions raising ulibj .•. Mr. Kumwembe le<1rned Defence counsel for bQth appell,rnts raised three grounds of appeal praying that the appeals be allowed. He had firstly stated that .the comp~a;,.nant had at the time of the attack been corning from a 11 pornbEi 11 club o And hatl therefore argued that the trial court should have founded the possibility existed of him being mistaken on the identifico.tion of his attackers. The, complainant had in his examination-in~chi~f admitted that at the time of the attaclc he had been coming from a 11 pornbe 11 shop. He had however, maintained that there was bright moon light and he had recognised his attackers as the appellants, These were his fellow village mates whQ htlO o.vertaken h-irn on the road bc·fore way laying him· near his home. That there . " V ' • - 2 - was bright moonlight is certified to by 'two other witnesses both relctGtl to the complainant and both had gone to his aid following the raisins; of the alurm by the complnln,:rnt. It is h-J.rdly necessary to point out th,1t one does not get drunk just for hri.ving been to a "pombe" shop or indeed for having taken so•.1c 11 poit,be 11 o Common exµerience dis ere di ts this contentione I am S6tisfied that Herman Mkonga the co;nplo.in2.nt ht1d not on the material night been drunk to the extent of affecting his senseso Mro Kumwembe further submitted that the trial court should not have given much weight to the evidence of Reuben Alfun ( PW2) and Avin Herman ( PW3) becaus£! of two reasons: Firstly the fact that the two appellants were supposed to hnve run away immediately these two witnesses came to the aid of the complainant thereby making it difficult if not impossible for them to have identified the attackers of the complainant. He concluded by stating that the evidence of identification given by these witnesses was just a reproduction of what had been told to them by Herman Mk:ongao Secondly r'ir. Kumwembe submitted that if the identity of the appellants had been thut clearly established on the very night of the attempted robbery and considering the vicinity of th~ Police Station at the place the appellants should have been arrested on the very night -~f th.:: alleg,~d offence or at least some few days later yet the app8llants were arrested a long time after the incu:lent. The trial magistrate hud found Reuben Alfan (PW2) and Avin Herman (PW3) reliable witnesses. He had found that the attackers of Herman Mkonga had not run away immediately following the raising of an alarm by the said He:-man Mkonga except after they had seen aid going to Herman Hkonga and by this time they had already been seen att~ing the complainant 4 I too find the evidence of f'W2 and PWJ xeliableo There l·Ju.S bright moonlight on the material night. They had - 3 - seen the attackers cf the complain~:~ and had recognised t!-lem c.nc, these were the two o.ppel J_ailts. Their evidence in court wns not the po.rroting of what they had been told by '.1c.:rm~n hkongc1 but what they hc:,d ,c1ctually seen. True PW3 had stated that the complainant h0d told them that the appellants were the people who had·attacked him but th~s statement should not be taken as a siyn that all they h2J testified to were lies except that statement aloneo Rather the statement should be taken as going to further strengthen the credibility of the complainant. This statement showed the consistency of P\i-Jl in the statements he hc:d 1:12-de soon following the attack and what he later made in courto As to delay in arrest it will not be fair to hole~. it c1g2inst PWl, PW2 und PW3. The inefficiency of a Stcltc Organ not controlled by them cannot be a reo.son for discrediting them. These witnesses were not running th0 affairs of the police and ·could not be held responsible for its responsiveness to the demands of the society. For thc: reasons outlined above I see no merit in the appeals which are hereby dismissed in their entiret:,,o ~ ·;·-- - - ;\_~\.-,_IV_ ~----· _), - \ \' ------- ~ c:,.__,._~ Yahya Rubama Judge 30.10.86