19960528 TZCA Mbeya

wPi fY\ Q,;L,L(Ut- AT i'1BEYi, OBIGINt1L JURISDICTION (IVi"beya Registry) CRmIN,e.L ;:PPE,,L I'O. 102 OF 1993 Ori1inal Criminal Case N,J ~ 26 of 1992 of the District Cc;urt of M'tieyn District at Mb0ya oo,.,ce.••Oti.00000~0-,oo 1\PP.8:LI,;\NT Versus THE R.~UBLIC ,o o o o cit o o a a~ o -~ o o o o c o ~ o ~ J UD3:.l!1'1ENT MWIPOPO , J' • : The appellruit CHi•li-1.f\ S/0 JhCKSON is o.1•'"'e-3.lin~ '1•":•'1inst his conviction of armed robbery C/ss. 28.5 nnrl 286 of tho Penal Code. The robbery was way laid on the ro8.d by blocki_n 0 the roecc1. ~i th lo·•;s o.t day time. The motor vehicle in which the complain:.,.nt,s were trcl.vellin~ was held up at gun point and all p:1ssen~ers were robbec1 money .:md :-:iroperty valu,;d ht about Shs.3,23.5 ,500/=. The incirler.t to:·;k ;_1lace on ':8/6/1992 o.t Utnmbalila Village, l'libozi District. On 20/6/92 PiJ .1 C. 9664 PC, Ernest arrester:! the appellant with ta:,;s of clothes -:it Mu.so.n;-;ilo. vill:::,,:~e out of which PW.2 John Mahen0;e m:::no.':,;erl. t,) i··\mtify his own shirt :1;xh. :::-· .1 which he VD.S puttinr; on durin:; the rob"•G:ry .,.n.:1 wb.c h, wets removed from his h:.v:; and taken away by the rob~,cffs. PV!.2 himself testifi,~d t,, the s:::m1e offect. He is 3n -:::ye witness wh0 saw the appellant sh'.)ot in the 2ir an..1 L~ter ·:m rob:)(,d him the shirt. He identified the accuse·i in court, not in idcntific':ltion )::o'.r<J.de. The issue of tho i ·lonti ty nf th,3 .:,.;.-;:Kill::mt h2...s bean ~,icked up by the learnei Stqte ;\ttor!lcy Mr. Mw2,::olo e.s of doubtful n,:-cture entitlirn; the appell:mt on acquittal. The a: ,pollo.nt himself in his rr: :::r:ir:,r:;.ndun, rJf appeal has ch::1.llcn.,;ed his inenti ty in c·::iurt ra,ther in an irlentifidation pnracle ,'.ls beinrr, unrelinblc. ~\n id.endfico.tion is :.1- p'll'a/0, is the most relia11le and rlesirn.1Jle. But, an identification in court is a1s0 lawful al thou1h not much wei1;ht can be put :;n it in tbe absence of -::>the:r corroborative ,::Jvidence. Hare ths i,itness P,-J.2 identified his shirt v.rith torn ml-\rks which were co.used by shrubs. He h.:1.;-~ ;;e")n we.::rr-in.s thG shirt for not less th.:m 3 (bys and it .still hcu.-,3 his .-:1.irt for it vns tnken o:vr:q from his 1x 1 dy. The o.ppellcmt tc,r> alle:::,:d th<::.t the shirt wos his which he bour1;ht from thE: c1.ucb.·:-;no When he l)rour.;ht it h,~ s2.icl it hn.d. a label whereas the shirt in court hc:,rl no l.:th,-)lG ficcrJr,;in; to P',v.2 his 1:11:lirt hos no lc.tbel.. The shirt wn.,s (\irty r~ven up to the time the Jolic0 seized it and tendered it in cou:rt. It i,s un imo-::;in:c_hlo that the o.ppellr.mt would have hou::;ht a :1\rty shirt frcm an .:mcti.:•!1 wi th:iut ,'.:\ receipt _cmci ·•······/2 - 2 - without knowinp.; the person from whom he bou:ht the shirt. Only two days hac1. elapsed. since the rob:)ery took pL::.ce. Once the identity of the shirt . 'oy Piv.2 is n.pprov9d by the co,1rt f,s ,~irl. the trio.l m'.1::;istr,:.te thE: learned Mr o Lyimo (RM) there is no way the ?'Jj,ellant will 3.V::"Jid ':1ein·~ bcld responsible for possessin;~ a shirt which W":cS rob:)wl frcm PWo2 at gun point. P~-1~3 Romanus K.::i.pin:~a too t-s, tified to h'.:J.v,~ 3een U1e; 1st accused the appellant firin:; the gun and h(;; kn2w him bcf:.1re the incident. This witness was in frcnt of the motor vehicle Stout Pick Up ,uv: vns in a better :position to see the arpellant whom he knew by n xne as Che.ma. The robbers had another motor vehicle L/Rover which was parked ,:1.t n. dist~mce in front of the scene of crime and r;tcross the logs blocking t½e ror.do PW.5 Sehas Mselo too testified to have identified the 1st nccusec1. '3.t the scene of crime ofor the was not covered with any clothes on the fcce unlike the other robbers who musked their fo.c<::s with clotheso P\.'106 Sikitu Chaula too was robbed and he identified the 1st accllsed as one of the robhers who manacinr~ly the h:::>t ,sun to them and fired o. .short in the air. PWo? Watson Mala.so saw the shirt Exh. P 11 bein;; taken from the appellant end it was a used shirt. DW.4 Tanu Many::tnje testified o.s hewing: been with DW.1 the appellant at 4.oo p.mo at his hom0. This time and d..'.:tte e.ppe;:u-s to h:we been conveniently picked. UP, hy DW.4 who is a r'eal br'.'.ither in law 0f the appellant for he only st.:irts t::>.lking of this time of his visit ,:1.t It p.m. on 18/6/92 without ariy contecerlcmt incic~ents which 1.ed the appellant to go to D'.!J.4 .3.t th::st pcITticulFlr time. He slept there ru1d next clay went to hospital with his .::.ister the wife of n:,1/4. Anrl there!:1.ftcr went with his sister to his house on 19/6/93 before he w'.:l.s arrested at home on 20/6/930 The truth to DW.4 most h:rve been d,,ne by convenience to avoid answerability for this crime for if Qt all it w~s n nQtur:J.l trip for him he should hnve been expected to ½e told nhcut his sister's sickness before r;;oing there on the very o.o.y of incident. Being close rel-"'.tives he <0uld hctve ;,;one after the robbery th:::.t evening or night for to which lr.tte time mi.4 could eo.sily hiJe tell the court the truth to chiled his br.·,ther in l.e:'..W& It i.s n,Jt in m·:,rsl .lif0 for o. :,rc,ther in lnw to :::.cc0ml:,a"1.y him wben r:;oin,~ to tre-:::t his cietzro The same 'sick' sister can I t h.J.Ve been th.-:i.t sick if a.ftertrG.~tmcnt i:1 hosr,i tal to walk with the o.pr,ellnnt to the .:.t~r:,ell~nt I s h,)u,sec ThiG···.·i::,pecrs to have been o. defence beinr:; cookei up t.J f'.Jrcst::'-11 cm.y c.rreEt or E1 cooked up story t::-lr:: in c~1urt. The tri3.l m·:::.r;;if'tr:?.te w2.r2 tc.stified tc) reject it• Since the.. Ven ti ty nf the D.;~;:iellant thc:urr,h rn")t ,1.cne on identified pm:-D.de is c-:::-rrcbora.te,l hy the .shirt c:f P\:-1.2 wbich w::..e i:ro;:-Jerty and ri,:;htly idontifie-~, I shc.i.re the views of the trid c::iurt there was ', ... 3 enough evidence to convict the c:qpell:mt with the offenc,::J of J.\rmed· Robbery C/sso 285 and 286 of the Penetl Code. The appeal is iiBmiesed in its entirety. Sentence of 30 yeo.re is sustained. 28/5/96 Mwipopo, J. Appell:mt Present in porson. Boniface: State i;ttorncy for the Re11ublic. c/c/ Mwakyusn. -Court: Judgement delivcreio Ri ht of ,-1vpec,l explainer'..• 0 28/5/96 I CERTITY th:i.t thi.s iG :::~ true coJJY of-the orie;incJ. .ju(•sement. DI.STl.UCT