19930825 TZHC Tanga

" '"( ,i:... -.)~ IN 'NE HIGH COURT OF TANZANIA AT TANGA -- APPELLATE JURISDICTION HIGH COURT CRDIINAL APPE.A.1110., 44 OF 1992 ORIGINAL CRIMINAL CASE no. 76 OF 1991 OF -TEE DISTRICT COURT OF MlJIDlZA DISTRICT AT MUJIEZA · :BEFORE: M.A. SEBUNGIE: DISTRICT MAGISTPiATE TIOO s/o SE:ABAJ.iJI ••• ., • o o •• ., ., ••.••• e APPELLANT VERSUS THE REPUBLIC m:sroNDEl~T JUDGTIMiill'IT .................. K.ANNONYELEz PRM ( EX. J •):: Tb.e appellant was. charged rri th and. 5:onvicted o:f ''Robbery With Violence c/s 285 and 286 of the PGnal Code". He was thereupon sentenced to thirty (30) ~ s imprisonment with twelve (12) strokes of corporal punishment under the Minimum Sentences Act, · No.l of' 1972 as amended by Act No. 10 of 1989. He now appeals against the convictione It was adduced in evidence for the prosecution at the trial that the complainant Mtangi (PW' 1) was attacked when and as he was going home to his house in the same village with the accused at Kibanda. It was deposed in evidence that as he was so g'Oing home at about 7 p.m. on the materi~ day, •n 27/4/1991, he had first' met wi. th Twaha PW'2 'Who was riding a bicycle. ' ' It appears they were heeding towards the same a_irection in that PWol would have been given a · lift but for the fact that Piv2 had a big luggage on t.tte bicycle. ,, It is further in avidence :for the prosecution that a little distance ahead at'ter PWI and PW2 had met ori the way, there was the appellallt standing • I beside the way hol,ding a panga in his hands, Both PWl and Piv2 claimed they properly saw and identified. the appellant on the occasion, he being a fellow villagemate. Mtangi PWl claimed that just as he hp.d walked past the appellant, e • e2/•• • I 2 I the latter struck him .1ri th· his panga at t110 backo Complainant turned out to find and ask why the attack only but to :recoi"lfe two further facilil,l blows of the panga which s011t him dovm unoonscioup. Miangi. oontono.s b. his av.idonce that the ap1)allant then took the oppo:rtuni ty to ta.~e -f.rom one of his (PWl) pl'\ckets his shs 7000/- which he l1ad -\hero leaving behino. a11othcr shs 3oco/-- which he had in anoth0r pocket • Tho\ complainant s-katei3 that· ho apont the night there until he regah1od his consciousness tho following rooming 1-ihon he reported tho incident to tho police before lrn went to the }rns:pital for treatment. .Complainant was admi ttod in hospital for somo four clays. :Moro evidence :for the prosecution was to t.:1e effect that that following mo.ruing,, the appellant ra.11 away to floe imnccliately he saw tho oomplainant'd ,. brother Amiri PW3 apl)roac,.1111g. The prosecution contend this reflected guilt knowledge on tho part of tho appellant. Ifo was chased. and a:tT0stcd a..~d when interrogated, he ao.mi ttod having assauJ. too. tho complainant tho provious day but denied tho .use o:f a pang-a but a wooden stick. None among tb.e prosecution wi tncssos stated the ap:pollan-t 11.ad also ad.mi ttod hav~g tak~ tho complainant's money as alleged by . tho latter. , nowevor, it is further in record that whe.11 pressed for dctai1s 9 tho compla,iriant sta1od that ho took so much money in his pockots alloetcd.ly booauso ho was a business man dealing in. coconuts. In his dofonco at tho trial 9 tho ap1)01la.11t still admitted havi:.1g a~saulted the complainant but f.n different circumsta...~cos and for a oifforont motive. 'n.10 api,ollant claimed they llail. fought fo:r a wo11.12...'1, his girl friend whom tho ' comi:>lainant wanted to disposcoss him (appolla,.;."1.t) and ho was all ou-t to provo.".li; · · this. 'llio appellant also <loniod having u.soa. a panga in inflicting :1110 111JUI'Y•. Rather, ho said ho usocl a wooden otick onl;:i'• Tho trial mae,'1.r:Jtrate disbelieved th!s defence. Ronco tho conviction, sontcnco and this appeal. On appeal, tho appoll211t, among other t 1-1::i..J.1eo, impugns tho fa,ial magistrate in believing thr;; claim that tho cor.u.plainant was robbcxl of 'an3, money. Ro uonclo:rs how. como, H' ho was a true robber, that ho left behind flOIDo other money with tho complainant tald.ng some only o:f 1:-ihat his victim allegedly had! IIc also irnpv.gns tho trial court f'or its failUJ.'o -· I 3 I to summon those ·whom ho hail. mentioned as his id tnossos 9 a thing ho could not do himself duo to tho roacon that ho lra.s :i.11 romancl custody ilh.:rou,g1out the pondoncy of tho trial. In tb.i_s case, tho trial magir.:rtrato riOJ,tly hold that t:rn question of tho appellant having causoct tho injuries on tho conplainant wao not dis].)'Utod. How-over, !lor hold.ing as to tho extant aJ.1d nature ·of' tho injuries ca.n.."lot bo sustai.."'l.od for· want of ad.equate ovid.01100 to support i to Tho appellant had tl1roughout tho trial 0.io1JUtod that tho injury was :i.nfliotod. 1rl th a b1..1.::ih knif o or pai."1&,a as claimed. by the prosecution. Unloso tho doctor who comr:. >::d. tho report on tho PF 3 (EXTio A ) was called to tootif3r at tho trial, hia ro:port that tho wound was il'lflictod with a pa.11.ga was nothing but hcars2-y and thoroforo inadmissible as against tlw appellant. It follous tl1orcforc t!;.at tho exact 11aturo of tho ~ wo1.1nds tho complainant had su.fforod could not havo boon prov on through tho doctor •s roport. 'lliis is important bocauso t~1ougl1 mr-4:ivo is not important in establishing tho guilt of an accused parson in.a criminal trial, it is a relevant considoration i.."1 t~J.at it tends to establish an evil m:L.-id (nons roa ) as against tho :parson charged. of tho crime. .As such, .it is a rolovant corroborating factor as against ~ho person charged· of an ofi'ol1cer • .And portino,.'1tl;r -bo ilhis case, tho uso of a pa.nga., if' accoptod, would ton.a. to establish. tho extent ,0f tho a:):pollan-. 's gull t or evil mind to commit e, g-ravor · offcnco t.han a more simple as::::aul t of tho person of tho complailiant11 Ronco t:ho liko).ihood of robbory having boon intondode ) ·what thon.7 is tho relevancy of' tho foregoing in tho circumstances of this ca.so? 'Ille appellant admits ho assaulto4 tho complainant but disput0s tho commission of robbo:r;r "id. th ,i.h.ich he -was convicted. of 0 If' true, tho robbo':r'-J i-ms com;nittod at a desolate place. Tho appclla.11t 't].1011 uondors how come, if robbery -was his real intontio111 t'.:iat ho should bave loft some more mono;y- - in tho possession of his victim tPH:-ig somo onl;7 of what'tb.o latter had? I muet confess I share with tho appellant's amazement in this ro[s'arc.1e Thero is not suggeGtoc,., lot alone real, a.xzy imminent ds.ngor that the appellant raighii have flocl. of without properly searching his "lfictim 's o1;hor pocket tJ.1oroby also fine. and therefore take away tho other monoy tho ~ictira had in that other pocket. llhat than might have hind.ored. tho appellant from fully accomplishing his misoion of robbery - if t:,at; it ~'IE!.S - a~ the p1:oc.Jecution contend that it was\' /4/ / 4 / Was it out of fear of sometbing - say fear from some.approaching p::>rsons? Or 1rJas 'nt it simply because the appellant had no intention of ta.lcing anything :from his victim and that in fact he took nothing from him? irhis is where we have the controversey. The prosecution contend of the former view and the der"'ence the later. Either of taese is possible here. Unfortuna.te1y, . the trial court does not seem to b;;1.ve considered this important f:l.Spect·or this case as noted in the foregoing paragraph. 'rhis non - consicieration of this aspect of the case, the failure oi-• omrnission to do so, might have resulted in the miscarria.ce of justice. For we cannot now ascertain·what results the trial magist:ruts would ha.ve come to had she considered that of aspectl,the. case. Sbe rni 0 ht but she also might not have come to the SG.me co::.1clusim'l a.s she did had she done so. I must., and I do resolve tht~ doubt in favour of the s.ppelJ. ant a::::: indeed I eJn entitled to do on this first appeal. It follows, therefore,· that the evidence as -;Jas adduced at the trial did not establish,,beyond -... peradventure that the assault as s.drni tteu by, and therefore proven against., the appellant, ~ias in the furtherance o:f robbery as contended by tt1e prosecution. Accor-dingly, I'obbery as well ·was not esta.blif{hed beyond· reasonable doubt and to that exten_t this appeal s ~sds. The conviction :for robbery is therefore 11ereby quashed and the sentence of thirty ( 30) years imprisonment wi·th 12 srols::ds of corpors.l punishmerit is accordingly set aside. The foregoing wotwithsto.nding., I am satisfied ther>e was proven at the trial and as against the appellant not only an · assault but an aggravated assault too. And assault is a lesser offence.to tha.t.of robbery for without intending to induce fear (or defeat by use of force) in the mind of the victim, there can be no robbery. In the event th0refore, I excercise the powers of this Court as provided u/ss 300 (1) and 366 (1) (a)(ii) of tbe Criminal Procedure Act whereupon tbe conviction for robbery is sustituted witb one of assault u/s 240 of the Penal Code. As r0gerd tbe sentence for tbe substituted conviction, it is noted that tbe appellant bas been serving bis prison term for a period of about two years now. That should be more thnn / 5 / I 5 I enougb for• t1:,,-: substituted conviction. Accordingly,. the app.el1a:nt is sentenced for the substituted conviction to such term of imprisonment as will result in his immediate rel a ase from px>ison o Order accordingly At Tanga this 25th ds.y of August i.n tl::c yeer 18J3. E. LoK. KlJmOfYELE 25/8/93 I certify that this is a true copy of oric;in c.l. ~· /