charles walles vs republic 1993 tzhc 203 10 december 1993

IN THE HIGH COURT OF TANZANIA AT^JDAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.119 OP 1993 ORIGINAL CRIMINAL CASE NO. 26 OP 1993 OP THE DISTRICT -COURT OP MOROGORO AT MOROGORO BEFORE: M„ J0 LUGAZIYA,ESQ., RESIDENT MAGISTRATE CHARLES WALLES ....... ........ APPELLANT (ORG. ACCUSED) versus THE REPUBLIC.............. RESPONDENT £ JL. P. A M.E N T MAPIGAN0 aJ> The appellant Charles Walles was charged with the robbery that was said to have "been committed in the residence and shop of Bura Ally (PWl), at Mwembesongo in the Morogoro Municipality, on 19/1/93 in the night. Bura's wife, Joyce Kiwale (P¥2), was said to have beeir slashed by a panga and injured by one of the bandits, and cash: money and other valuable goods were taken away by the gang* At the trial PWI and PW2 testified that they had seen and identified the appellant to be one of the bandits, and that he was the king~pin and in the fore-front. It was common--ground that the couple had known the appellant before and' that he (the appellant) and .PWI had been at school together* The appellant denied' any complicity in the robberyY He claimed that his relationship with PWI and PW2 was rancourous, and that the evidence against him was a falsity which was motivated by a desire for vengeance. The trial magistrate found that the appellant had •fcaken patt in the robbery, upon believing the testimony of PWI and PW2:. He accordingly convicted him of the offence and sent^him to jail for a stretch of fifteen years, • «*/2 ~ 2 - forgetting that th.. minimum punishment prescribed by law is now thirty years’ imprisonment. In the assessment of the magistrate, there was ample time and sufficient light'for PWI and PW2 to have — a good look at the appellant and enable them to recognize him positively. The magistrate took into consideration^ the fact that the witnesses knew the appellant before the incident. He believed the testimony of the witnesses that they saw the appellant from close proximity and that there was actually a face to face exchange of words between PWI and the appellant. He also believed the evidence of PWI that the scene was illuminated by a light which shone from a bright bulb outside, t,; The magistrate took the view that the mere fact that the material evidence was given by a man and wife, •ould not, as a matter of law, detract from its truthful­ ness, and that there was, therefore, no need to look for •orroboration. This was in response to the appellant’s suggestion that the evidence of the two witnesses be approached with caution as the two ,were spo\sesa The appellant’s petition of appeal contains grounds which amount to an assertion that the robbery was a complete fiction. The respondent Republic through Mr. Blandes, state attorney, has expressed more or less the same view. The question has been posed : why did the two witnesses fail to sound any alarm, and why didn’t they report the incident to any of their neighbours after the gang had disappeared? That is a relevant question, ' but I regard the fact that PW2 was found to have sustained an injury in that night as sufficient to dispel any vestige of doubt that the robbery was actual^ perpetrated. As pointed out already, the appellant and the two witnesses were old acquaintances, and the witnesses said they saw him from very close proximity. They also said that he exchanged words with PWI, and that there was light from a bulb outside. The point has been made on - 3 ~ this appeal that the appellant could not be so fatuonatfc brave as to play such an open role, to break into the house without any disguise, and to proceed to talk to FWI who knew him. The point has also been made that the evidence did not disclose how bright was the light inside 'the house* These are strong points, and Mr. Blandes was of the opinion that they somewhat reek of a reasonable doubt. I respectfully agree with him, and I have taken considerable time to do so. In accordance with the law9 the appellant should be entitled to the benefit of that doubt. The appeal is consequently allowed. The conviction and the sentence are set aside, and the appellant is to be set free forthwith unless he is otherwise lawfully detained. That really disposes of this appeal, but I feel I should say a word about the evidence of sponses before leaving this case. In principle, the learned magistrate was right in holding that there is no rule which stipulates that the evidence of sponses be corroborated before it is acted upon. But in its wisdom the court ought to apprehend that whe* e sponses share a common interest in a proceeding, “T 'V l < rx 4 “ T .r U k * ________________ ______ the urge, temptation and opportunity will be there for them to h ave a private moment to discuss the events with a view to getting up and sticking t;o a uniform version of the ev snts, in the process of which the facts would — -- WUtULU possibly be distorted or embellished. So the question- whether or not the evidence of sponses should be treated with caution, or whether the court should look for corrobora Sion before acting on it, is ultimately a factual one to be decided upon -the circumstances of the particular Case. Delivered in Court.' Appellant in person Mr Mlipanc for the Republic, B. P. MAPIGANO JUDGE 10/12/93