19920827 TZHC Dar es Salaam

T. f_._ . ,.--=-t"'•: t· ~ IN THE HIGH COURT OF TANZANIA At Dar es Salaam (PC) CRIMINAL APPEAL NO. 12 OF 1990 / I (From the decision of the District Court of Kilombero at Ifakara in Criminal Appeal No. 10 of 1990) Original Criminal Case No, 86 of 1989 of Primary Court of Kimboro DIRECTOR OF PUBLIC PROSECUTIONS. 0 • 0 • t • • e ~ a APPELLANT versus 1. HERMAN MIKIDADil 2. FARIDI MBELA • • • e e o • o • • Q • o o o • • • • o • • RESPONDENT 3. DOTTO BENGO JUDGMENT RUBAMA, J. HERMAN MIKIDADI LIOTELA, FARIDI MBELA and DOTTO BENGO were charged with and convicted of robbery with violence c/s 285 and 286 c-f the Penal Code and each sentenced to fifteen ye~rs (15) years imprisonment. The three above mentioned accused having been tr.ied by the Kilombero Primary Court, appealed to the District Court of Kilombero at Ifakara. Their appeals were allowed. Aggrieved. by this outcome the Director of Public Prosecutions (DPP) has appealed to this court. The -trial court conducted the trial-admirally. It addressed itself tQ the issue: fact of robbery, th~ ~lleged robbers and whether the accused/responden_ts had been priperly identified.- The trial court found established that these had been r1bbery. The first appellate court, in a rather perplexing apprlach maintains that there was no robbery. I accept- the evidence establishes robbery having been committed on the material night and further that the three respondents were the people tha~ hat c~mmitted that robbery. The trial court analysed the evidence of identification minutely and reached a correct-decision. There was sufficient light and two witnesaes, no strangers to the respon~ents, had seen them. O~IARI NJANJA (P.W,1), the watchaman of the shop from ••• /2 2 which the respondents were stealing described in details how his attention had been drawn to the shop from where he had been. hiding by an out of the ordinary sound and how he hadJ very· courag.eausly and single hand~dly failed the robbery and the price of this conunendable act. His evidence of identification of th~ respondents is corroborated by the evidence of ABDALLAH MAKW.ARA (P.W.2) who had responded tl P.W.1's alarm~. He saw the respondents run away from the scene of crime, He also· saw the injured and bleeding. OMAR.I NJ.ANJA (P.W.l) who he and others took to the Police stationi The evidence of C7154 Cor·poral MOSES (P. W. 3) also further establishes the credibility of P.W.l. In his (P.,w.1) statement to the police~ he (P.W.l) mentioned the respondents by their names as the robbers. P.W.l was consistent in his story. I see merit in the appeal which is hereby allowed. The decision ~f the first appellate court allow;i.ng the appeal of the respondents is quashed. The decision of the trial court is restored. The three respondents are to be arrested and sent to Prisona·. to continue. serving the 15 years imprisonment that each of them had heen sentenced to from where they· had left it. The order of compensation made by the trial ·9ourt to be paid to P.W.l by each of the respondents stands. In summary, the D.P.P's appeal is allowed. YAHYA RUBAMA JUDGE 27/8/92 27/8/92 Coram: RUBAivIA., J. · Parties absent ~~udgment delivered. YAHYA RUBAI1A JU:WE 27/8/92 l;tger: Would the Registrar please (1) issue Warrant 1! Arrest against the resp•ndents as per the judgment (2) Inform the parties of the outcome of the appeal. YAHYA RUBAMA JUDGE 27/8/~ I CERTIFY THAT THIS IS Tll TRUE .,0,9PY OF THE OR!O:INAL ; l \ i.: ... . \:- C. sENtoR nEPmfi krorsTw