19980608 TZHC Mbeya

IN THE HIGH COURr OF TJI.NZANIA il.T MBEYA DC CRIMINAL f.\I'PEAL NO. 21 of 1997 ( From Mbozi District Court Criminal Case No. 87 of 1996) SIFA Kl.J.'1WELAoo o o. • • . o •• o •• o o. o •• o. o o. •• ••• APPELLANT VERSUS THE REPUBLIC •• o • • • • • • o. ~ ••• o •••• ·••• •·•; • • • • RESFONDENT JUDGEMENT MWIPOf-'9.1 ,![• There wes a robbery within at Nyambili Utambalila Hills of in Roman Catolic motor vehicle of Kamsamba Mission which was coming with many passengers in it from Kamsamba Village towards Mlowo Mbozi. 'Among the robbed victims was a teacher of Kakozi Primary School who was robbed shs. 70,000/=, one mortana bag valued at shs.3,500/=, pair of shoes shs.9;000/=, which ocouted on 3/1/1996 at about 6.30 p.mo This teacher is called Loti s/o Songa who testified as Pw'1 in this case. 5 days later on PW1 saw the appellant at Isansa Village and he told the village leaders to help to arrest him but they refused.• So he kept watch of him and next day they bounded the srune bus with the appellant • going fiom Isansa to Vwawa Town on the way near Vwawa PW1 sought the help of passengers to arrest the appellant and they agreed and took the appellant to the police station of Vwawa. On being searched the appellant was found with b ·bullets of a short gun.· A week later the police held on identification parade and the appellant was identified by PW1 as the robber whom he recognized when beat him where robbing him at the Nyambili Tambalila Hills on 3/1/1996 I~11 identified the bag of Montana type which was found with the ,appellant which the appellant denied to have belonged to him Md testified on oath that it belonged to PW1 together with its contents of 1 pair of new khanga, cloths, one black cloth, 1 polyster cloth, one cotton bag, and one sulphete bag. PW1 denied to be the owner of the .. contents of the be.g. The evidence of PW1 identifJing the appellant as having been one of the robb~rs was released by the trial magistrate the learned Mro Lupenza ( SIM).~ - 2 - He uirected his mind to the dangers of convicting the appellant on the evidence of the single witness PW1 and of the dangers of a possible mistaken identity. He was satisfied that the appellant was one of the robbers at Nyambili Tambalila Hills on 3j1/1996 who committed the robbery. The explanation of FW1 was that he identified the appellant as one of the robbers who was holding a club and a bushknifeQ All the passengers were ordered to get out of the motor vehicle and surrender all them things. The robbers were about 9. · From the way the transaction of the robbery was done it took some time for all the passengers to disemark from the motor vehicle while surrendering them properties and money to the robbers who beat the passengers. It was around 6.30 pm in 3 January 1996 when the sun in the southern hamisphere and usually darkness sets in very late around that period in thus part of the country at around 7o30 pm. At that time the sun set is around 7.00 - 7.30 pm. So it may be still dat'k until 7o30 it is raining when it can get dark quicker than if there is no rain. There seems to have been still somelight for identifying the culprit. The appellant has raised the isue of the acquittal of the 1st and Hemed s/o Mkondya which should have benefitted him as well. But, the circumstances of the arrest of the appellnnt as and he 1st accused Hemed Mkondya were quite different. The appellru1ts indentity was corroborated they his being found with the proceeds of the crime the Montana bag while the 1st accused was not. J,.lso the appellant was found with 6 bullets whereas the 1st ruid was not. There was enough enduced to corroborate the appellant as one of the robbers who attacked the Kamsamba Roman Catholic motor vehicle at Nyambili Tambalila Hills on 3/1/19960 Since he was found with the bullets and montana bag 5 or 6 tlays after the robbery under the doctrine of recent '., ,session he could still be deemed to ha~e been one of the robbers of the Nyambili Hills of 3/1/1996 even if PW1 had not sufficiency identified them. The conviction was quite properly done for the robbers had 3. guns and indeed the appellant was arrested 6 days later with 6 bulletse He was one of the robbers of Nyambili Hills of 3/1/1996. His appeal against conviction and sentence hereby dismissed. / - 3 - But he raised one point that he was convicted with possession of bullets and sentenced to 7 years imprisonment. I called for the file Mbozi Cr~ c. No. 5/96 RVs Sifa Kamwela. Since the witness PW1 in this case also testified as PW5 Loti s/o Sanga and the treJ1Saction of these bullets was directly connected with the robbery of Nyambili Hills. It was proper for the trial magistrate the learned Mrs. Mtambo to have ordered that sentence of 7 years should have been serve concurently with the 30 years in the armed roobery. I hereby order that these two sentences in Cr1 c. No. 87/96 and Cr. c. No. 5/96 shall run concurrently. So, he shall serve a total of 30 years in jail only instead of 37 years. -,, r\ E,L.K. MWli-Ol-0 1 \\ , \\ ...;,.,,·,•. JUDGE '\ f· .. .. 8/6/1998 t' ,i ~ .'· ~ '~ ' ~I i I certify that this· is· a t rue and correct cepy of the original Judgement .. . f f) .. ~ -. .'·\ .. y,./ ·, ..;/· ~;- DIS TRI CT ~ISTRAR\ - MBEYA