19870713 TZHC Dar es Salaam1

•' THE UNITED REPUBLIC·OF TANZANIA ., IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM .. APPELLATE JURIS~ICTION HIGH COURT CRIMINAL APPEAL NO, 24 OF 1987 . ORIGINAL CRIMilJh.L C,:':..SE NO• 684 OF 1982 OF THE DISTRICT COURT OF MOROGORO DISTRICT AT ~OROGORO ' ' 1-. EVARIST CHAN'GA 2 • PAULO HS/:J-YGI • • • • • • • ~ .APPELLANTS (Original Accuseds) vor&us ' . : THE UNITED REPUBLIC • • • • • ~ ·• , • • • • , • • • • • • • ~ • RESPONDENT (Original Proaeeutor) ... J U· D G E M E N. TJ. l-1AINA. •• J, The two appellants were convi_cted by the distric·t court ot robbery with violence•· They were sentenced to seven yeart, ~mprisonment_,·' They now appeal •. Andree. Simon (PW.1} said that on the night o'f: 17 December 1982 at ~bout_,o p.m,, he was at a pombe shop aelling local liquor. He se.~, tha two appellants. Andrea then le.ft on his way home, He_h.ad eash shs.50/•• He clid not know the appellants before. On his way home the appellants followed him, assaulted him and etole the money he had, He returned to tho pombe shop where he ~ound some people who aent hir,1 to the PolioG Stetion,. Then he went to the hospital whGre he was treated tor the injuries e.nd discharged the ,f'ollowing day-. Then he was cail~d i;o the CCM Office where he saw the two appellants w~o h&d b~en arrested by a militiaman, PUi,.2 Stephen Aloisi and the coraplairtant !dertti:fied the~. In his evidende Stephen Aloi::ji told th,e court that he was told of' the assault committed aga:f.rist the complainant e.nd he arrested five people in6lud£ng the t'i-to appellants. Gtephen said that PW.1 Andrea had said he was assaulted by five people. So the militiaman artested the two appellants and three other persons who were subsequently acquitted by the trial court. The two appellants gave an account of how they were arrested on the morning of' 18 uecember, 1982 at Morogoro. and sent to the CCM of':fice and then to the polioe station,.- They denied the charge .• The cardinal principle of' law is that the prosecut+on has the duty to prove a charge against ari ·accused person, beynnd reas·onabie doub:t. In this' case, the complainant said that he was robbed by ·two persons at night~- He said the t'ttlo appellants are the persons who stole his money and beat him upi Ha said he did not lo:l~w the ~ppellants until the day they allegedly robbed himi Now, did he identify the appell~nts? The-evidence shows that the appeliants were arrested one day after th~ alleged robbery. How did the militiaman Stephen knolv that the· appellants had committed the offence, According to the complainant, he was callee!. to the CCM o:ff'ice on the :following day and he saw the appellants there. It seems therefore that the militiaman,arrested the appellants on suspecion only. I say so because the complainant did not at any time give the appellants' names nor did he point out to the appellants before they were arrested. 'n:lere was no identification parade held. .J 3 ... The-position app~ats to be that ri£ter the appellant:, were arrested ori suspecion and sent to the CCM off'ioej the complainant was called there and ~as shown the suspects. He then said that they were the ones who had stoien hie money. That wa, very unsatisfactory• Another point is that according to Pwi1 Andrea only two persons stoie his money.· But the militia.mart said that compla4:i.nent hed reported thzt he was assau_ited by :rive ,' persons. That is the 1~eason the militiaman arrested the two appellants and tl~ree other persons. In his evidence at the trial the complainant insisted that only two persons assaulted him. Then, why did he report to PH ._·2 Stephen that five persons had assaulted him.·· It seems the complainant was not sure how many peopl:e had assaulted hiin nnd who those assailants were. For these reasons, the appeal is allowed~ .r The conviction is quashed and the sentence is set aside, The nppellants should be r·olensed from custody forthwith unless they are otherwise lawfully held; AT Dli.R ES SALAAM Itomeye! State Attol"neyJ :for the Republic Appe1l~rtts ~bsentJ j