19931210 TZHC Dar es Salaam 1

" IN THE ·.HIGH COURT OF Tii.N-6ANIA APPELLATE JURISDICTION . HIGH COURT CRIMDTAL APPEAL NO. II9· OF 1993 ORIGINAL CRIMINAL CASE lTO·., 26 OF 1993 OF THE DISTRICT. coun.T OF l'-10H0'.}0R0 AT M0R0G0R0 BEFORE: M.., io LUGAZIYA,ESQ~, RESIDENT MAGISTRATE CHARLES WALLES ·o • • o o • • • • • 0 •••• ~ :APPELLANT (0RG. ACCUSED) versus THE REPUBLIC,,.,,; •• ". e • ., • • • • • ,; •. ~ • ., RESPONDENT J ~ ,T U :D G M E N T • . ~.-4..~'1-'-•=---•-a... l. .,.&.,.. t__.,_; ...._ _ _..,,_, The appellant ..Charles Walles. was charged with the robbery that was said to have been committed in the residence and shop of Bura Ally (PWI), at Mwemb~songo in the Morogoro Municipality, on 19/1/93 in the night. Bura' s wife, Joyce Ki wale (PW2), was said to have be err, slashed by a panga and injured by one of the bandits, and cash, money and othe·r valuable goods were taken away by the gang. At the· trial PWI and PW2 testified .lthat they had seen and identified the appellant to be one.of t~e bandits, and that he was the king-pin and in the fore-front. It was common-ground that the couple had knovm the appellant before and' that.he (the appellant) and.PWI had been at . . school togetherc The appellant denied' any complicity in the robbery. H-e claimed that his relationship with PW.I and PW2 was rancourous, and that the evidence a,'.~ainst him. was a f_alsi ty which was motivated by a desire for vengeano·e. The trial magistrate found that the appellant had taken patt in the robbery, upon believing the testimony of PWI and PW2;~ He accordin:gly 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 as-sessment of the ma[;istrate, 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 o The magistrate took into consideration, the fact that the witnesses 1mew 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 appellanta He also believed the • evidence of PWI that the scene was illurJinated by a light which shone from a bright bulb outsidee The magistrate took the view that the mere fact that the material evidence was given by a man and wife, •~uld not, as a matter of law, detract from tts truthful- ness, and.that there was, therefore, no need to look for earroboration. This was in response to the appellant's suggestion that the evidence of the two witnesses be approached with caution as the two _were spa·. ses ~ 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 1 t I • they report the incident to any of their neichbours 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 actually 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 alsa 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 fatuously brave as to play such an open role; to break into the house without any disguise, and to proceed to talk to PWI who knew him. The point has also been made that the evidence did not disclos·e how bright was the light inside the house. These are stron0 pointsj and Mr. Blandes was of the opinion .that they somewhat reek.of a reasonable doubt" I respectfully agree with him, and I have talcen considerable time to do so~ In accordance with the law, 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 i-s 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 sponse~ before leaving this case. In principle, the learned magistrate was right in holding that there is no rule which stipul1ates that the evidence of~sponses be corroborated before it is .. acted upon. But in its wisdom the court ought to apprehend· .,. that where sponses share a conrnon interest in a proceeding, the urge, temptation and opportunity will be there for them to have a private moment to discuss the events with a view to getting up_and stickint: to a uniform version of the events, in the process of which the facts would possib)..y be distorted or embelli~hed. So ·the question .whether or not the evidence of sponses should be treated with caution, or whether the court should look for corroboration before acting on it, is ultimately a factual one to be decided upon th8 circumstances of the particular case. Delivered. in Court.· / .Appellant in person Mr Mlipano for the Republic· •. .. ·- D. P. MAPIGANO JUDGE 1::::r.n..·1-•.~ 10/12/93