19870928 TZHC Tabora 1

IN THE HIGH COURT OF TANZANIA TABOR.A. / APPKLLATE JURISDICTION HIG.-'f COURT CRIMIN.AL jPPEJJi NO ,44 OF 1986 ORIGINAL CRIMINAL CASE NO. 6 OF 1985 OF THE DISTRICT COURT OF NZEGA. DISTRICT .AT NZEGA Before Mil,O:fGO Esq_.j DISTRICT MAGISTRATE SAIDI NZ~ GULA •• ·••• o • ~ . . . ; • • • • • • • • • • • • • , • • • • • -.APl?ELLANT (Original ~ccueea, Versus THE UNITED RRPUBIJ:C •••••••••••••••••••••• RESPOND:ENT ( Original Pros.eoll,$Ol'} CHARGE: Robbery With violence c/s 285 ax1d 286. of the Penal Oode Capol6 Vol.l of the Revised Laws. JUDGMENT CtIIPJTA, J. The ·app.ellant in this appeal, Saidi ~zengula, was jbintly charged with two others j namely, Ki bw_ana Malllidi (whose appeal has since been dismissed~ and Musoma Mapalala---··. (y,hose· appeal has since been allowed") with the_ offence of robbery with violence. They were convicted as charged and sentenced to ten years imprisonment. The· prosect1tion witnesses deposed that during the night of 14th January, 1985, one Roman Joseph (P. W. 2), a watchman employed by a firm "lmovm as Nzega Bus Service, was on du.ty g-uarding the property of the said firm. The premises of the firm include a residential house where one of the partners of the firm (p.w.3) lives •• During the material night, the premises were well lit bl ·e1ectrtcity light. Later that night_.9 a group of four ban.dite grabbed P ~ W.1 by the neck and told him he wouJ.d ;b~J shot dead .. ./2. - 2 if he raised an alarm. They then covered 'l1j.r1 with a piece of cloth and two of them went to break into P.W.3 1 s house while the other two remained guarding P.W.2 as they pressed · j;k1:.--.:..'>-~ c · '. :.:. ·- :J ,.;C:~r _:;;.~d neek, Fro=. P "W ;: 3' s ho use the ban.di ts stole cash Shs.20 1 000/=jsone 400 watch batteries, a bicycle and piston rings ·and made off • . Out of the four bandits, F.W.2 identified the ·,ppellant. ;Qf P. w. 3 The appellant h2,d been an employe,evtiefore and so P,W.2 !mew him before~ The matter was then reported to police and F.W.2 immediately reported to P. w/~d the police that the app-ellant had been one of the robbers.· That very day, the second accusedi whose appeal has since been di sm ssed i' was fo D.Ld j_l'.}_ pc ssession of some of the articles stolen fron the complainant's premises. That very day, the appellant and the 2nd accused ucr-0· found hiding in a cave in the bush, and on seeing the police, the appellant and the ~d accused took to their heels but were arrested. In his defence, the appellant gave no more th~ a brief account of events ·leading up to his arrest. In his memorandum of appeal, the appellant challenges the evidence of identification and charges that the trial Court denied him the opportlllti.ty of calling his witnesses. To start with, the appellant 1 's claim that he was denied' the opportunity of cal.ling his witnesses is clearly preposterous. The record of the trial court, which I .find to be e.o.thenticj clearly shows that he chose to make an un.swom statement and said that he had no witness to call. ;as to the merits of the. appealy the prosecution' a case dependad on both direct and circumstantial evidence. It was the evidence of p.w2, which the trial court accepted, · ••:·;; t- that the scene was well lit, that :P. W. 2 saw the appellant ~I ~ face to face, that PeW.2 and the appellant had lmown each other beforei and that P. W. 2 immediately named the appellant as having beBn. ·cjn~ of the b~ndi ts. In my view, the evidence fully justified thea.e findings of fact. It was also ·fully established that the second accused was found in possession of. some o_f the stolen properties the very next day i that he was later found in the company of the appellant at a hideout in the ~bush; and· that on sse1ng the search party, tho appellant and the ·2n.a accused took to their he~.4 In my viewj bearing in mind the circumstances in which P.W.2 saw the culprits, the light at the scene and the fact th~t P.W.2knew the appellant before,-the trial court was justified P.W.2 . in }?.olding that/had corretly identified the appellant. Oredence is lent to P.Vv.2•s evidence of identification by the circumstantial evidence. It could not have been sheer coincidence that the appellant should be in the company of the 2nd accused in a hideout that very day, and the appellantt:s counduct at the time of his arrest could not be that of an innocent man. On my ovm vi aw oi' ~~1e evide.nc e, therefore, the · app.ellant•s conviction was fully justified. I now turn to the senten,ce. At the time of the trtai, the repealed Criminal Procedure Code was still in force. BY section 7 of that Code, the learned trial magistrate C<=!uld lawfully pass· a sentence of not more than eight year, imprisonment in cases of this nature. I. should, perhaps, .add that th$ provisions of section 7 of_ that Code have bean substantially re-enacted in.; section 170 of the Criminal procedure .Act i 1985. O·o ./4. _, I ,.). I' In passing a sentence of ten years imprisonment, therefore, the learned district magistrate acted without jurisdiction. In other words, the sentence was illegal. If the lea:r.:'.led magistrate felt tl1at the case meri.'te·d a sentence in excess of his jurisdiction, he could have committed the accused persons to this court for sentence. The sentence of ten years imprisonment is accordingly hereby set aside and substituted therefor· is a sentence of eight years imprisonment. 8-a}Te for the variation of the sentence, this appeal is otherwise dismissed. this 28th :day of September, 1987. Ip> I ·, : ..... ! \