20001201 TZCA Mwanza

2 IN T}B COUPT OF APPEAL OF TANZANIA AT NANZA (COPAM: KGA JcAomrAtjAo, And LUGAKINGH 0A0) CPJMINAL APPEAL NO. 1 OF 1996 / BETWEEN DAVID BONIFACE @ SYLIVESTEP CHACHA APPELLANT AND T}EPUBLIC O O O OOOOOOOORESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Sekule, J.) dated the lkth August, 1995 in Criminal Appeal No: 170 of 1994 JUDGEMENT KISANGA, J0A: This is a second appeaL arising from the appeilantTs conviction for robbery with violence and the' sentence of 15 years 9 imprisonment0 Both courts below found that the appellant was one of a gang of robbers who invaded the shop of PW1, Aibrose Lema, at night, overpowered the watchman P142, Aiphonce Daniel, and having broken into the shop stole large quantities of motor vehicle spare parts. There was the evidence of P117 andPW8 that the appellant I. disclosed the registration number TZ 54224 of the motor vehicle which was used to ferry the stolen goods to the home of the first accused who unfortunately died before the trial was concluded0 This information led to the discovery of the said goods which were found buried in the ground at the home of the first accused, pw6, the owner of the motor vehicle TZ 5422+ confirmed that the first accused had hired his motor vehicJ..e to carry spare parts . 4. -2- to his (accuseds) home 4 The kth accused testified that in the early morning following the night of the robbery, the appellant took and sold ti him some motor vehicle spare parts for which he could not produce a recipt0 All this evidence which both courts below accepted was sufficient to found the appellant's conviction. In this appeal the appellant who was unrepresented filed a petition of appeal and additional grounds of appeal 0 The grounds raised are very long and detailed0 The appellant complains of an irregularity at the trial in that when PW.3 was giving evidence, other prosecution witnesses were in court. The appellant had raised this issue with the trial magistrate who properly ruled that the presence of those witnesses in court while P3 was testifying would affect not the admissibility of their evidence but rather the weight to he placed on their evidence. PW43 is the police officer who investigated the case. His evidence did not touch on matters that seriously implicated the appellant with the offence, such as, the disclosure of the registration number of the motor vehicle which ferried the stolen spare parts; the showing of wher that motor vehicle could he found and the naming of the first accused as the culprit. All this damning evidence was given by witnesses other than P443O Therefore the presence of those witnesses in court while 7,J 0 3 was testifying cannot, in ourview, be said to have influenced their evidence0 Consequently no prejudice was caused to the appellant4 The appellant further complains that one Greshion Kassia, his co-accused at the trial who appealed separately to the High Court, had his appeal allowed while the circumstances involved in both cases were the same. He wonders why his appeal was not 400/3 allowed too0 We found it necessary to call for and examine the record of the High Court in the said appeal of Greshion Kassia. It is High Court Criminal Appeal No0 42 of 1990. We note that contrary to the appellants assertion, the circumstances of that case are not the same as those of the appellant's case 0 There the only evidence implicating the appellant Greshion was that of an accomplice, pi4, who testified that Greshion had sold stolen spare parts to him. There was no evidence to corroborate the accomplice evidence, nor was the accomplice evidence, standing alone, cogent enough to sustain conviction. It was on that account that Greshions appeal was alloweth But the position in the appellant 2 s case is obviously different 0 There was ample independent evidence to corroborate the accomplice evidence of the 1+th accused who testified that the appellant sold him motor vehicle spare parts. Some of the remaining grounds of appeal raise issues which are not relevant, 0ther. raise issues largely concerning the appraisal of the evidence and insufficiency of evidence. Such matters cannot be considered on second appeal where only points of law can be raised. In the result, we find no merit in the appeal against conviction, and the sentence imposed is the minimum prescribed by law. Thus the appeal fails and it is dismissed in its entirety. - s 0 4' - - DATED at MWANZA this 1st day of December, 2000 R. H. K:SANGA \\\\\ JUSTICE OF AF?EAL : D. Z. LUBUVA 1 JUSTICE OF APPEAL K.S.K. LUGAKINGIPA JUSTICE OF APPEAL I certify that this is a true copy of the original0 M. MAIi(UGIIE SENIOP, DEPUTY PEGISTPiR