19920608 TZHC Dar es Salaam

1W THE HIGH COURT OF T1Jf LJ~iNIA .i~T Di1R ES SlJili.AM ', APPELLi,.TE (URISDICTION HIGH COURT CRIHDJ;.L APl-'L~L NO. 24 OF 1992 ORIGHJii.L CRIMHL,.L C~1.SE lW~- 681 OF 1990 OF THE DISTRICT COURT OF r1:1.LA DIS'rRICT .h.T KIVUKONI BEFORE: CHi;.NDE, ESQ. , DISTRICT M.11.G ISTR.li.TE NICOkUS MAJi1.LIW.b. ••••••••••••••••• APPELLANT (ORG, ACCUSED) versus THE REPUBLIC ••••••••••••••••••••• RES}ONDENT (ORG. PROSECUTOR) ~r J u D G M E N T. RUBAMA, J:- \ I 1 .. ,,. . ,.. ,' ~ .. \ •; ·;(' ' .- () . ~ '!c~ r, NICOLli.US JY1{J;~Lr,r.;{.: a:~d twci· o,t'ber'~ were charged with ' T •,•: ~(,,. ' robbery with violenc~.> pnly NICOLAUS MJ~JALIW.b. was conviited ✓-- as charged and senteho~d to· fift,een (15) years imprisonment and t'o . sufi'er twelve. ( 12) ~tr,okes. He now ~ppeals against both the conviction and the impo~ed sentence. . , The facts tha't · the learned r:- tr:ial magistrate . found established were that some -bandits who had lncluded .i: '·., the.l -·t appellant had, with the us.e:/o'!f 'rig stone pushed open t:he door of the ro6ra .·of," $iIDI M.!.JiFi. . N and from thrrein stole.· . '· " some i terns. These ' ' ' bandi teF , _.,· . had f in the course !--;'; of stealing _I.·, attacked with a sharp object the said Sl'.i.I'DI Hi~;Fi,.N sgtTAN (PW 1) and his wife, JOHA mL.RI (PW2 Y1'" _,Only t~e appellant . was identified by,both FWI and PW2~as o~e of the robbers, ' . Mr. I1wengela, l2arne'd Sto:te Attorney suppo:rted the . ' .l\ ) l ,, findings of the trial court ma,intaining that he the appellant, had been identified· as one of the robbers,, ')liy PW1 and PW2. He further submitted that th~ appellant h?,d .een hiding from the police, hence the delay in his arrest. This assertion was in response to th.e appellant ts submission that if he had indeed been identified as one of the robbers on tho material day, why then was he not arrested on~~e same day and three days had to pass before hi.:s arrest? 1~ - 2 - This appeal must be allowed because the question of identifi.cation of the appellant as one of the robbers on the material day was not properly handled. The learned trial magistrate had not taken into consideration the evidence of SJ;.IDI HALFJ~N SULTi..N (PWI), JOHA OMARI (PW2) and C7145 D/C L.i..URENT (PW3) togethtl• She considered the evidence of each of these witness in isolation from the other; had she considered the three witnesses' evidence as a whole, she would have seen ~ajor contradictions in their evidence and would have found it not safe to hase convicti:c,n on that evidence. Examine the evidence of PWI and PW2 together. The evidence of PWI is not the same in major details as that of Fvl2 despite the fact that the two had experienced the ugly incident together. PW2 stated that she had switched on the light which was irMnediately switched off by one of the robbers and it was at this time that $he identified th appellant inside her room and holding a R_anga. The appellant threateningly talked to her and went on to savagely attack her with.the pannga, he (the appellant) was, holding. This was not the evidence of PWI. He (PWI) escaped from the room and found the appellant on the corridor. He does not mention whether or not he (the appellant) was holding a panga, PWI does not all~de to the putting on of the light l,y PW2 nor to the alleged address to HJ2 by t.he appellant.· These contradictions are to my mind major notwithstanding the fact that the r ! prevailing atmosphere then was hostile. But how could PWI have ~orgetten of ~he switching of the light by PW2 and the address and attack of PW2 by the appellant? That the appellant had not been identified by PWI and PW2 is shown, ~Y their conduct subsequent to the robbery which, on the evidence, I accept had taken place. PWI stated that he had raised e.n alarm and that people responded to it. He did not tell these that the appellant was one·: of his robbers, neither did his wife PW~o The two did not positively tell the police that the appellant was one of their robbers. We hav0 th0 evidence of C 7145 Det.Constaile Lb.URENT (PW3) that· he had been -informed by PWI that he sua1e9ted the.appellant as one of his robbers. Suspicion is ► ' : ; .. not good en.QJXgh.,\ On the evidence on record· therefore, ,I.; - 3 - the appellant was arrested and charged with robbery with violence on suspicion, To this suspicion of FWI was the allGga tion that the appellant was a"I.Jv.i.dillg, arrest. I say nothing on this allegation but even if true, it does not in any way advance the prosecution .~ase against the appellant, The prosecution has failed to establish its case beyond reasonable doubt. I allow the appeal. I quash the conviction entered and set aside the sentence. The appellant is to be set free at once unless he is otherwise being lawfully .held in custody on other matters. '·· -~-r.~-- \ ··~ -~~. •\.., . '- YAHYl1. RUB.A.Mi-\. JUDGE 8.6.92 oram: Rubama, J. Mr. Chiza for the Republic Appellant .- abscmt Judgment delivered. '"'··~:--,, ~\,___ Yi1.HYA RU.Bb.I1A \-:.. .••...•\. . '•,.·"-·•·-..,.,:·. JUDGE 8.6,92 ...