19961204 TZHC Dodoma

APPELLATE JURISDICTION EXTENDED JURISDICTION CRIMINAL APPEAL NO o 34 OF 1996 (HIGH COURT CRIMINAL APPEAL NOo 27 OF 1996 ORIGINAL CRIMINAL CASE NO. 87 OF 1993 OF THE DISTRICT COURT OF 00:00MA DISTRICT AT DODOMA BEFORE G.A. URASA ESQo P.DISTRICT MAGISTRATE) JUDGMENT .FUKELELWA, W:.._(EXT. _JURIS,Qlc;_'.f.I_q_1'Q t The appellant Juma Shabani was on 23/09/93 convicted by the Dodoma District Court on the offence of Robbery with Violence c/s 286 ~f the Penal Code. I He was :subsequently sentenced to a thirty year imprisonment term. He is dissatisfied and has preferred this appealo ' - The facts ~f the case as adduced at the trial was to the effect that the ctmplainant PW2 Deusi Mohan, Mawji, on 11/04/93 at around 12 midnig~·t returned from a Cinema hall back to his house. As rw2 eet at the door and opened it. He was suddenly pushed inside the house and felled down. A piece of cloth was pushed into i his mouthe Two people demanded money from himo There was an electric lights~, he sh~wed them a cash hex in which he had kept Shs.~•000/=• PW1 identified the men as his labourers who work in timber work. PW2 lay·~- his st~mach as one of the r~bbers sat on his back. He was ,i released when the robbers moved away to collect money in the cash b•:x;, The :r"lb'bers demanded for more money of which he replied that he had none. The appellant produced a lo::dfe and burried the blade on PW2 stomach; threatening te kill him. A rope 1:ras tied around his neck and lightened it, bef~re ransacking the cupboards ~or r.ioney. It 1.1as then that PW1 managed to escape from the Louse. He locked the door from outside, and raised an alarm \·1hich wero o.nswerecl by the watchmen from nearby houses. • 0 0 0 • 0 • 0 /2 •• ...I These were PW3 Emmanuel s/o Ngohola, a watchman with Masalo Company, and one Juma.. As they reached the house of PW2 the two robbers h broke out from the house and ran awayo owever PW3 deposed that he mana- ged to identify the two rubbers by the aid cf the electric lighte PW2 reported the incident at Makole Police Post. The appellant was arrested in Kondoa District on 12/04/1993 by PW1 c.7978 D/C Werema on suspicion, namely by being in possession of property suspected to have been unlawfully obtainedo He was found with a new handbags new clothes and cash Shs.36,800/=o Later on a report was received that the appellant was needed in Dodoma. in connection with a robbery case. He was subsequently trans-· ferred to Dodoma. At une stage PW4 Assistant Inspector Andrew and .PW5 No.D.725 D/C Maulidi arranged an ideritification parade in which the appellant was positively identified. I think there was no need of that exercise as PW2 had claimed that he knew the appellant before. The appellant had testified that the case is a frame up by PW2, his employed whom they had quarreled ~ver a piece of timber, which the appellant alleges ·,to have bought from Hombolo and deposited it at PW2 ,remises., The appellant has insisted on the same stand in arguing the appeal. The republic declined to support the conviction, mainly because of inadequancy of evidence on identification. Mr. Mussa, learned Principal State Attorney declined to support the conviction. Mr. Mussa stated that PW3 claimed to have identified his attackers whom he claimed to be his employees. However PW2 couldn't name the attackers, and the incident ~ccured at night, hence there was I have gone throu,:;h the evi dcnce sarefull~r ~ I agree wi·:J-1 · l-.c:arncc: Principal State i1.ttorney that failure by PW2 and PW3 to name • 3 any of the two robbers, whom they claimed to know very well was an anormally indicative that they had not identified tthe persons who attacked and robbed PW2e They however had some strong suspicion that it was the work of PW2's employees. This probably was due to some bad labour relations which are common practices for those dealing in timber business. Unfrotunately the policeman who first received the complaint from PW2 could not testify. This leaves us with the evidence that the appellant was arrested for being in posses,sion of property suspected t-> have been stolen or unlawfully obtained. An alteration of the appellant with PW2 cannot be overruled all together, although the appellant did not cross-examine PW2 on this issue, one has to take into consideration that he was unre- presented. Under those circumstances the appellant deserves a-benefit of doubt regarding his identification. I therefore quash the co.nviction by the towar Court, and set aside the thirty year imprisonment term imposed on the appellant. I fi,:r+.1-i"'~ order his immediate release from custody unless held therein on other lawful charges. Appeal allowed. ",, SoBo ~~i'.ELWA PRINCIPAL RESIDENT MAGISTRA'L, EXTENDED JURISDICTION 4/12/19~-- Judgment delivered in court this 4th December, 19960 Right of Appeal explained. '\ J \', . \. S. 3 ~ LUKii;.Ll:Ui,\ PtUNCIPAL RESIDENT MAG IS c'RA'I'T•: :E::{?!~NDED ,TUl1ISDICTION ---·- -·----·- - . ~ .. -.