19951121 TZCA Mbeya

IN THE H!GH CCURr OF T,,.NZi.NIA AT MBEYA HIGH COURr CRIMINAL ru:'P:SAL NO. 138/93 (Original Criminal Case No. 118 of 1992 of the District Court of Chunya District at Chunya) Lf~GSON SHANTIWA. o • • s o. o. o i o • • • • • • • • • a o AP:iiLI Ci,NT VERSUS Tr.s.: R..- rrBtrc ...................... c ••••• RFBroNDEN'T J U D G E ME N T MWD?Of-0, J. The appeal is against a conviction of armed robbery ~/ss 285 and 286 nnd a sentence of 3r- years imprisonment and order of refund of shs~2;321,000/= stolen during the robbery from FW1 Amashu George Mpanzi. The appellant Langson s/o Shantiwa was jointly charged with Adam s/o Iddi with found they were found 1.. · - ., together on the day of his arrest. On the relevant date of robbery the 11th March, 1992 PW4 Christian J'-1-iw.s, . ,. •• , ·~ ( i the driver of PW1 was ambushed hy armed robbers alont; the road between Mkwajuni and Mbeya at !Vibala-naountain., The owner of -:he motor Yahicle was robbed shs, 2,310,000/=. Other passengers in the motor vehicle including PW4 were robbed their money and attire. 1/2 hour later FW5.Albert s/o Choga Drive:r of another motor vehicle while driving along the orune road and direction reached the scene of the robbery and was himself robbed again in the same·manner by the same group of,armeq. robbers. Before robbing l'W5' s motor vehicle the robbers orderedJ.tiiJ'ji ai:,..d.:ilil, . end other victim . : • .. . .·. .~r! ~ passengers to remove the robbersf- log which had blocked the road and alJ.-owed PW4' motor vehicle and victim passengers to proceed with their journey while the robbers remained behind robbing the 2nd motor vehicle. Later on PW5 fqo was allowed to proceed with his journey to Mheya where he reported the in~ident to the Mbeya Policz, , PW4 on reaching the next village reported to the villag~ go 1ernme'nt. whose militia 0 guards escorted the motor vehicle back to Mkwajuni Police to report the incident. The Police recovered Jne bullet cartridge at· the scene of crime which was of a civilian shotgun. All the 5 robbers were armed with guns except one of them. On 22/3/92 both ?W4 and PW5 were called to a t·olice •indentifi~ation parade at Mkwajuni so that they could identify thG robbers who attacked them on 11/3/92. . ~ ~ . . !ll, Both PW4 and PW5 at different times mannged to identify the appellant as the ring ... leader of the robbers who was making all the orders and his co-robbers were c~ing him 11 afandei' meaning their leader; The 2nd accused who was also in the parade was not identified and the trial court acquitted him on a no case to answer basis at the close of the prosecution's case. The appeliant h3S challenged his identification as being unsafe and clone at night when there was no enough light to see the robbers~ The learned State Attorney Mr~ Mulokozi has urged the court to uphold the decision of the trial court for the identification was safe and at daytime around sunrise, The judgement of the trial magistrate the learned Mr. Mdendemi (DM) has del:i.perated on all necessary factual anJ legal issues of identity, credib~lity of witnesses and the defence of e.libi put up by the ~;· :.., appellant and came up to the positive view that the appellant had been properly identified as one of the robbers, and the ringleader one, I see nothing wrong with all the findings of facts and law of the lear~ed Mr, .Mdendemi (IM) who SU'jp~:qted his views with-.some case law autharities ,,.hich are relevant to the facts of this case. The .appellruit need not look fa:..~ for a 1'witch11 who betrayed him.t9 the Police. His own defGnce wc.s quite shaky and only fostered the prosecution$ correct identification of him as one of 'his arrest according to PW2 the appellant tried to e~cape in a short hot ch.--.s8 1 and the appellants fall int~ a pit is what saved the day for the folice. An attempt to escape from an arrest is incriminatory for it forestalls guilty knowledge on the part of the escape. ItJis whereabout and residence at the time of incide.ace also portrays the appellant,~,~ . . ... a person . who' had· no fixed e.board at the relevant time, The appellall.t testified that he lived in Kasisi \Jillage as a gQlcl pro~pector, .but on the day of incident he purports to have been at a g~est house at Makongorosi for 9 days waiting for cigaratte:3 f~m another businesa man. Prospecting for gold has to nothing.. dp with the cigarattes miss.ion for which h€ stayed for 9 days 'I:,· "1 • from 10th .,. 19th Marc~, 1991. at Makongorosi. But at the time of arrest he was not at his guest house, but was the 2nd accused in another nren of Makongorosi called Kwanganya at around 9o00 pemo His witness DW2 doe~not support the residenr ~f the appellant at Kasili village, actually, he knew the appellant as living in .. Mbeya and the~ on 1c/3/1992 when they met for the last time the eppellant told 3 .,"'DW.2 :ne Laison s/o Karikenye th~t he was going to Ujerumani on 11/3/1)92 whi•h is the, morning of the robbery. The appellant was in short, one of the robbers on the day of ~oiden~ afid I . the love for money shrouded all reason for taking th~ last elementary means •o mask identity. For over ¼ hol"-r th~. robbery were still parading o:penlly with day break light commandering passengers to lie down while they were doins the rpbbery. The,.adtion removing the log would have given any person enough time to identi~ the culprite The appeal lacks merit. It is dismissed~ EoLaKi MWL::o~:o JUDGE 19/11/1995 21/11/95 '· Mwipopo, J,. Appellant: J~bsent Mrs. Makuru (SSA) for Respondent C/C. Mr. Mwakyusa. Court: Judgement delivered in the·absenc~ of the Appellant DR to infonn him. E.L.,K .. Mt-Jii::.OfO JUDGE ,:~/11/1995 .n _. I certify that this is a true and correct copy of the original . Judgement. (; _/\ .·_\_. ,_.\/,r!C \., DISTRICT 1:iiarsTRAR MAEYA l: 1-