19960320 TZHC Mwanza

cy ct IN THE HIGH COURT OF TANZANIA J-~~19J-' (p-.,,J' /~,j'.~ I ~- APPELLA~E JUJ.::ISDICTION HIGH COURI' CRIMINAL APP-SA.L NOca 171 OF 1994 . . (Original Criminal Case No~ 52 of 1994 of the District Court of Mwanza D:i.strict at f!:wJ.:..'lza. Before: G.K.Kayaga~.Esq., Principal District Magistrate) JUMA NGELEJA • o o .o • • • o • • • • ;. o o o " • • • o • • • • • • o ., 1, • o c1 • • • o • • • " APPELLANT (Original Accused) VERSUS THE REPlrnLIC •••••••000000000•000000000•000000000•••• RESPONDENT (Original Prosecutor) JUDGMENT LUGAKIN<:g__RA., J • . ; The appellant's conviction on a charge of robbery with violence proceeded on the evidence of PW1 and PW2 1who claimed to have identified him during the commission of the offence. ~n1en this appeal came on 1 for hearing, learned counsel for the Republic, Mr. Kabonde, doubted that evidence and. declined. tq surport the! conviction•' Mro Kabonde I s doubt was well frundJde The two boys, PW1 and PW2 1 I I were sleeping in one room where four of the robbers were alleged to I have entered. The appellant is their vilf-age-mate and neighbour, well known to them. However, the evidence of these boys was not free from difficulty~ They said that the bandits had torches, but the moment they stormed into their room they orderedl them to cover their faces. I Since that was the case, I think no amount of torchlight would have enabled these witnesses to identify the ihvaders., It is therefore not surprising that they gave no description of the appellant's appearannee i but merely asserted that they identified hime I think that alone was i not sufficient since the incident occurred at night and in violent I circumstances. Furthermore, there was contradictory evidence as to I whether any part of the stolen property w~s found in the appellant's possession. PW2 claimed that a wire \·Jaf' found at the appellant's house but PW3, a police officer, stated that nothing was found there. Finally, I I the appellant not only denied committing the offence but also maintained that he answered the alarms. Although this was denied by PW2, it is not possible to say who to believe between him and the appellant as the prosecution called no independent witness. In criminal cases the burden is on th~ prosecution to _prove ·~h~ ·. charge beyond reasonable doubt. It may well be that PW1 and PW2 had reasons to suspect the appellant but that provides no assistance. I am in agreement with Mr. -Kabonde that the appellant •s· guilt- was not proved beyond reasonable doubt and I must, as I do, allow the appeal and se_t _aside the conviction and sentence. The appellant was actually out on bail pending appeal~ JUDGE Mwanza, 20/03/96