20010131 TZHC Mwanza

IN THE BIGtt COURl' OF TANZAI'!IA AT f•NANZA -~-...,..__....- -APPELLATE-JURISDICTION : :.•. - HIGH COURI' C:?IM1NAL.APFEAL NO. 166 OF 1999 (Original Crimir_ial Case No.i 95 of 1996 of the District of Geita District at Geitao Before~ L.NoB.Ngovongo, · ·· Esq. Die~rict Ma.is7~t~~-1-~ ~. ZACHARIA JOSEE-r o o (\ o o o o o o o o o o o o o o o o ~ o o o: o o· o o APPELUt1I' (Original Accused) VERSUS THE ~~LIG,. 0 0 0 0 0 0 0 0 0 0 0 0 .c o O o o ;· o O O e O O ~~0 0 O RESPONDENT (Original . .;prosecutor) -~-------- JUDGMENT I:IB_OSO 9 JUDG~ o c' :, ,. The \,i.~peii~t 'togGtho/·i:;i th another were charged with and convicted of :t~bbery ,;,;ith vi'ol&.nde; - contrary to sections 285 and '286 6±' the Penal Code. They were each sentenced to 30 years imprisonment~: Dissatisfied by the conviction ~rid' sentenc~' tiie' appellant appealed to 'tliil court;,' 1 it is• 'not':1~'m,m :fr ·fne othe;;:~ef~:on \1·~~ also appe ~ed. 0 ·•.-.-. ·: . There wa~ evidence, which the trial court believed, that the shop . ' of one Dan'iel Lusana was broken into by bandits and an assortment of 1 •• shop goods which included trousers,shirts, bedsheets and bicycle parts were stolen.. The oandits, who had ordered the shop owner_ to lie -~ . . .. .. down for his safety and discharged a gun to scare him and the members . . . of the public in the neighbourhood, then left wi'th the goods The 0 ____ .... -.-- -------- complainant was unable to i.dentify any of the bandits. He said his shop goods had an 11x 11 ~.rk to identify themo - :Lnform::i.tion • Some s days later?. r.e obtainedLthat s<;>me seized properties were .... ·-·-- . , ... with the police at Nya.,.'13, ::nle~ He went there and he claimed he was Ii a,ble to identify shop itc1, s as his stolen property. 1 The goods he ···-- ... ·-·-:·_ .. :. 1c11·ntified1-1er~_.t·endcre-d _:;:n co 1 ,rt··•ci."'_ oxh:i,bit_?_• .. The c9urt record is ': silent if all -those i terns had +:he ~ ~ . Dx:1 mark which the complainant had ~; claimed VfaS put on his she::, go0~"' - ', /' 2 ,., , , The appellant was arrested< as a auspect after another . t:, ,i • • suspe,ct, o~e Namoo·,.(or, Nembo), _named him as a part.icipant •in 'the :, robbery. It was claimed by PW2 - Joseph Mayala, that after the appellant was arrested he was searched a.>1d · variou.s shop goods were found a:t his home and that he admitted to nave· stolen them in Mshinde Village, which.was complainant's vill-ageo He was also alleged to have men~ii Nemb6 a,nd Mishauri ( the co-accused) as fellow partic'ipants in the commission ~f the robbery. When Nembo \-l'as arrested he escaped from custody and, apparently was never brought to trial. Mayala's evidence was confirmed by PW3 - Aloys Kamuli. The trial Court believed all that ev-idence, hence the conviction of the appellants together with his co-accused who elected not to give any defence. ·Iri hiq petition· of appeal' the appellaryt listed five grounds., The. fir~t grou~d tlas: unne-c·~'ssary·. He complains that the conditions at the time of the robbery were not conducive to accurate identification., Of course,_. the complainant did not say he wM able to identify the bandits.,; In his second ground of appeal ·he contends that the identificatipn of the goods. ,fo\ind with him ivas \ins~tisfactory in that the mark 'X' on common shop goods was not enough to show that those goods had been stolen from the complainant. I take it that the appellaht was impliedly admitting that the goods which were found in his house and ~ . - ' , . :' ~-:..__ ·se'.ized had the ., ·:. X rri~rk, which would suggest that they had been 1 1 obtained from complainant's shop. No doubt if the appellant had bought such goods from the complainant they would bear the 'X' mark. ' . ( This would beso because the complainant did not say in his evidence that he usually obliterated the mark when he sold a marked itemtoa customer. However, the appellant did not say he. ever bought those · goods fror.1.,;.t_h~QD.P.Jb.:ljjb.:ilt:·::._-nf:l:,t·:altho:ur:;h:-:: he.-~cl:::i.inc:.:l ..ho, had---,J. -sh@p ... -- .,.. ~-- - -~---- - . . .. . -.,, ... - - - .. . .· . . . himself, the evidence which was given in_ court was that the goods !, which were seized from the appellant were found at his home, according I" I I I 3 ... to PW3 :-:Joseph Mayala~ Why would he.::- keep shop goods in his home? -.- .... The problem with. the evidence regarding the goods which were. seized from the. appellcmt· is that neither PW2 nor PW3, who were present during the sea~ch, were able to say exactly which items were seized from the appell;.:-1~0 I: lvill 'be remembered that goods had also be.en seized from Nembo (r-rambo)·• .I have found , .. it if!1portant to cops~_der that aspect of the evidenc_e because if only very small quanti_t:i.es of common shop goods were found with the appellant .and , in the. absence of clear evidence that the goods had the 'X' mark it would give rise to very weak inference that he was party to the robbery. It was said that the co-accused, Nempo, mentioned the a:)pellant as a participant in the robbery • . Nembo did not say so at the trial nor did he confess that he committed the_ robbery.. So, whatever Nembo may havE:, told PW2 -:-- a 'yi~lage Exe~utive Officer, an~_:P¥3 - the Ward Execi:-t;iy~ Officer in the course of their: 'i'nvesi;iga:tion is •-. not of much evidential value·. _: It was said that the· appellant confessed to stealing, shop . . . goods in complainants village.·· If he made such an admission duruing not the investigation stage, he did_Lrepeat the. admission in court and ) h~ repudiated it saying he made the admission to avoid further " .,;··.. ~-- .. , ..... b~afihgs from.the Sungusungu who had arrested him. The offence of armed robbery is a very gxm:: grave. one, that 0 ______ is why ,it attracts a minimum sentence of 30 years imprisonment. on Therefo;e, a person should be convi~ted for th'at offence onlyf.very compelling, credible evidence 0 I do not find such evide~ce against the appellant and I thin.~ that had the trtal court viewed the evidence critically he would have found-the case not proved . against the appellant beyond a reasonable doubto I find the conviction unsafe to sustain and I have to allow this appeal by ... - , ' .4 .quashing the convi'ction and setting a'3fo'. the sentence of 30 yeBTs imprisonment. The api;iellant is t 9 be set free forthwith. unles's he . t is held for some other lawful cau,3e., ·'· . . . .. JUDGE·· At Mwanza ... . ,1·. tP:~. ~ tr(."'· ~.- ... Date: 31/01/2001., · · .-- Coram: Mr., Jo Mo Somi, Ag. DRo Appellant: Absent.o For Respondent: Mr~ Out a B/Clerk: Charles Bo (J Mro Outa, S/A: I appear for the respondent/Republic. ., :,_ ')~--~--=------- ' '. ..i:.i. • . ·. \€)-¢~ Order: Judgement of Court delivered today the 31st of Ja11uBTy,2001 in' th.'£i absence of the appellant but in presence of Mro Outa, ·7§/A :tor the Responden~c '- ...:·-. ·:. A.Go DISTRICT REGISTRAR 31/1/20010 (