20000830 TZHC Mwanza

r IN THE HIGH COff~1 OF TANZANIA AT MWA:NZA APPELLA'.rE JURISDICTION HIGH COURT· CRIMINAL APPJ~AL No.,9Lt OF 1999 (Original Criminal Case No~78 of 1998 of the District Court of Bunda District at Bunda. Before: A. ·Magafu (Mrs.) Principal District Hagistrate). NYANG'ANYI s/o CHACHA ooooooooooooooeco APPELLANT (Original Accused) VERSUS THE REPUBLIC oooooooeoooooonooooooooooo RF~SPONDEJ\111 ( Original Pro.secutor) ~oso, JUDGE~ At about 3:00 a.m. on the night of 7th November, ·1997 the living house of one Amina d/o Saidi, a teacher at Ligambn Primary School, 11 was broken int• a..'1d Shs.20,000/== cash as well as a matress and an ,, assortment of <'>ther property su'?h eJ3 a radio, tnble c~_othes, bedsheets, saucepans and bottles of body lotion were stolen from therein. According to /1.mina three who went out to look for tne thieves. A number of the sto1en i terns vrnre by the thieves recovered after t"hey had ap1Ja.rently been aba11donedLin the course of fleeing from the sc;ene~ One of tho.sc robbers wns shot with an arrowo have The a:;.'row was then recovered an::l, 1:!9-S found to /_a piece of flesh on it~ The people who had responded to the aJarm followed blood stains from the arrowr- wound. The·stains led to a house the door to which -·· ~- . ~· .1 ,.,..•r.fcove:fed part of the stolen goods werE; ... from the '" ... ' ,,- - . I , .. }t·-...1 ... ef~,,... . . '. ;:• . . ~•~;.. r J 2 the appellant an_d another person (not an appellant) were arres'ted as sµspects and prosecuted fer robbery with violence, contrary to sections 285·anct 286 of the Penal Code. The appellant was found guilty and convicted as chc1.rged ,-.rhile ,the original second a.ccused was acquitted._ The complainant ha.d c'laim,ed that she was abJ:e to identify the appellant wi t_h the help of lamp light in her r60m., , The trial ~ -· . coi.J.rt however, entertained 'doubt i:ha.t the pre~a:i.ling circumstances: were cd-i1duci ve to reliable identification., · Th~ court found that some of the stolen goods .had been found in the house of the appellant and believed that the appellant escaped to Musuma where he v.~as arrested. This finding by the trial court has been challenged. The trial court I s fin_q_ing was based on the evidence of P\>/3 -- one Phinia.s s/o Mashamba, who claimed that.,_the .. _house .. in which some ~ .o:t: the stolen goods were_ found belongecl · to t,he appellant.. . He clarified. that the house bel_onged to appellant I s mother· and, that the _appellant lived with his.mother in that house., However, evidence I ·' .. '... !ram th~ q_ppellant and his two witnesses-D\-12-':" Bebester Ouditi and . ~ t· DW3-~Ferd-{~~:~- -Manase was that the appellant did not reside in the house which belonged to a lady called Ibrah, A person called Kichere ,.waf3 believed to be living in the house but· was hot known where he disappeared to., Both Phinias an~ two of the defence 1.vitnesses said in their evidence that blood stains ,-iere found' in the·. .house \ which Phinias ~ claimed was being occupied by the appellant and his mother. It seems then that the person who was shot with an arrow entered the house a.11.d that e>..-plained. why· the blood stains \\1ere traced right into the house. But there was no mention in the prosecution evidence that the appellant was found to have a fresl1 wound anywhere on his body o So, he could not have been the person who was shot with an arr:ow. /I.part from the evidence of identifica.tion, which was not believed by ,...,,,,...-·.t:·_ ... _,._ •• ,••• .::i.. 3 the trial court, what other evidence was there to connect the appe~lMt w:i.th the offence'? One.might say Phinias 1 evidence that ·the appellant],ived ,in the house. But how about the evidence of the appellarit ,and his two. witnesses that he did not live in that house? The trial Court did not discuss that evidence and there was no cogent evidence. to discredit it o Vfr1ich then leads to the c~nclusion that the prosecution did not discharge its burden of proving beyond a reasonable doubt that the appellant was one of the robberl:?·o f During the h~aring of the appeal the learned State Attorney for the respot1dent Republic did not support the convicbon and I think he is right. This appeal is allowed. The conviction is quashed and the sentence of 15 years imprisonment set asideo The appellarit i~ t~· be .set free forthwith unless he i.s being held for some other _lawful' cause,. It is so ordered. J. Ab NROSO cTUDGE 30/8/20000 .. . Mr~ Ri.-1abuhanga, S.,A., ,. ~;"~~~.:~:t,~.i;;~-:~~~ ' .: . •:-,~'7/ _,, -,;";;,_,,,.·;r:: • _I ,i',: I