19750506 TZHC Mwanza

T41 r COURT OF TANZANIA I LLA2'' JUaIDICTION • , HIGJ COURT CiII:L ..pi TAL sO. 451 OF 1974, CF. HIGh COuRT ChIUNAL ;'AL NO. 5 OF 1975 ORIGINLL CRIM1iAL C.12,7 NO. 23 O.:F 1974 OP TH DIS2RICT C0.UR11 OF iC\;GV DISTRICT, - - AT NYAAHkNGA. Bo" F.. L Bub'rwa, Tsq., DISTRICT MAGISTRTJ I0CHRISTIi1.ViUS0LINL/0 lTKd'TNDTLA) .• , AL LAINT . . • '2D ANUL IZARO ) . . . versus TH hIPUBLIC . . •. .•..•• •• CHARG9: Ibt Count: Biirlary c/' 294 (I) of . th Pna1 Cod 'Cap. 16 Vo, 1 af th' 1ws.. 2nd Count: Robry with Violancn c/s 286 of. th Pna1 Code Cap. 16 of 'tho laws. UDG?NT • LUGKINGIRA,' AG. J.: •. • Th' ô11ants, Chfitian Mtso1ini Ntakwndpra and. mana1 Lazaro 1 a1on ith to otrirrs, w'r iiard with burglary and roiby with vioI'nc. Th ap 11an'tsw-r- donVictod 6nThotli counts whi1'th r'st - w"r acquitta.. hyw'r snt'nc'd. to th bur1ry and flight ars Laprisornn't for th . ro3bry, thq snt'nds 3rdrd to ran co?isrcuti'vly. Thy also ordrrdto compensatp. th cornpla±nant in 'th- - sum of Shs. 9, Q35/=. - It was all a qustion of id,ntifica'tion.. Th complainant 'told ths tDial couxt ho 'orith night of'.O/2/74u gang 6f robbrs 'tomd his • door wih" ck thi"owingit op'n. .Thr'of thpi sift17 Antrrd 5nd riad" S I 'tn cci'rlx ant's a n-r 'thg dmana'd for ifony * n1aflu1 : thn c5m-'Iinant, an ad man, rtf'rrj to as • • ofMif i ket was tI 1'difi., act6r. H had a torch andTh panga.H was • • alo dr'ss2di'n •a T'-ci sa't-r. ThcornpIainant rtcognisa him thi on thr pt."Th ropss sms.to hav tkn o long and th tochs'ms t6 1a b n'hnc1Id witH such indiff nc that 'th 111't rAflc'ted • w'1 from th whitr—washrd w1ks of tli hOuss to nabIe say idntificatiou. ThI7. had knowH vjlnmahuil sinc his birth. H- mmdiatly nam'c1. hirn whon PW3 arrivd. Th followig m orni ng uinanw I was arrs'td • •. •. at a fanral Althou'h nothing was found on his parson h had his r.d • sw-'atron. • - Mus1ni had r'main'd outside whi1 th' rob1irry was oingon. At on-b sta - th comglainant told 1nmanul that n had sornrnony outsid. 9inmana<l thria ld tn complainant oatid, followiHg from bhind with hitoi'óh on tFi' com'lainant's sholdrr. As th'y rch.dth doorway • th" torchThhon2 on iIussolini's fac' stnding Outsids and thcompIainant saw ah conisdThim. Muss61iniordrd tH coplaThgnt takn back Tnto 'th' hous' as all 'th' mcfiy was allg'.dly th.rr. H- also • • slap'ud th' complainant,Againth complainant had knownMussoliniThjnce his childhood.. H had no gradgrs a,aiflstThim who was aTt'r all lik'n a • • grandchild toThim. Muss5linI was arr'st'd at his hous.at dawn on • 21/2/75. On bing sarchd h was found with Shs. 935/= tucked in his anth'rw'ar.. - - - • - - - - - Likth. 1crnFtriaI ma4strats, I blirv that thq bopIainnt proporly rcognisd th ap''l1ants. I hays found nothing ih 'ths nvidpnce • upon which to fault this fInding. InROria V. pblic, (1967) T.A 583, hCoar'l; of pra 1 consi1rd ths qu'stion of id'nti±'ication • • by a •sinls witn'.ss, • • •• . . . . ... .. . /2. • . - 2 - It w6tw. hnld, i'oilowing I ( , Ila ] V. R. (1953) 20 IACA. 16, that while it iV lily possiLi'-to bonit on t 1fin ancoroborat'd vicInoe ofa ing1r' dniTyin wtnss, tn".r" i rid'fo testing with th grcat'st car'th' svidence of such a witn.s, esp?cially whn it is known that the condic tionsfavuurin -a correct ientif'igatign Wn'r difficult. Applyingthis test in the instant c5sn, thr ar" more factors hichTh5int ic, favourable circumsatanc-9 of ide?itifi5'ation than otheris. Thre was tn roh1igI1t which was beingndfererly flasflel in the room. Thxe ws the. faiIiarity be.tweefl th op'llants and the comp1ainant The aope.ilaflts .were.Thlso -talking. The cOmplainant had no difficulty in n.ming thn upon thaThrrival of PW3. The itaation was sip,nificantlr IiIter2nt in Roria V. Reoublic. . In that 5an, arising out ci' a down orm'-'.l raid I a banFof' Iasi on 27 Septembr, 1966, aon a Y)osi Many.ottafor persOns ware killed including the dcc osed in resaet of who death theTh 1,.)oeI1nt wag charg-d and convi5ted of mur:1-r. DoUrtn.nn days fte.r tRe raicihew:is identified at aniu-n+if'ic J.OThaL b-' P wif" fThoe' )f th- ersons kiTid u the aic1 Th !eith-r thep''rson who killd heft husbnd of passed close toTher when ntering th-' -ifla.nyatta." - The. wifewas In -tii maiyatta at the tim , of the. raid. The trial judeassssdtfl.e iif'e as atrutEj'u1 witness and i'houhttiiati str gth Cd he evidence that t1 apeliant wasTh stranger to her He e.xclaId tim pssibItit7 of mistke. The asessos had unanirncac1 disacr-ed with him e.xpressing their vie.w that th :.ppellnf was strange to tue. witess that tile conditions ctung the f'aia were ulifavoaroble oThccuate iaentificaion and that other wine sees at the ma4yotn- w.re.anre1ible. over the purpored identification of' cd-a50h6i. 'On acocal tR Court of ApeoI dhe.d th cofiv1ctIr and s-r±'oc,, h i in That 10 +1 c1r5umtaricesrefried t la;s, the assessors it fqas rnsaf ,, to rely on th evidence ofthe woman. The f'atsof' That case are cl-afly dist'ingiehabl from the intant case ! Tha l'rned 'tril thais'tat v-'n aOJrese,d his mind to tm posibi1ity of 'hunet bu't but dcied againet"it I think he was justified. I will He,foienot intf'ce witn the apel1anti.s convictions In Owardin' the sntences refrre.d To nd ofdering them to run conse.cotive1z,-the learned trial agistate remarked.:. - "These stone. bong robbxr cass have nowbOatTh prevalent in this jurfsdictionKaragwe District). I iav rcentiy convicted an accued ci' cases of this h-ure,Thnd e.nte.ncea him to a total • • of 12 sears imprisonm-h±. Therare.aIrea.dy mce than 3 cohvictions of css of this hature. and about five still p'ndi .Large amount • • - of ony was stoln • Cimplainant very old mOn. AcOu,sed prson • • wnrn ltho1ly arffid' nc Ston 10of' Minimum efltenCes Act empoe a • " .• • • a cOurt to impos sent"nôe above. th minifflum BrgIary followe( y • • armed robbery ci'arly-Ottasts cnsectiv .seflteapes. U - - • IVha always benthe tendency tos the a1lgd prvIe,ne of. an - off-nco A a Iicnc f'Or awarding 'entences that may betermeO. nerve • shattrring. Tak ,, th snt''nc ifl t1- first count, for iñstane. The minimum fOr ±he 1'ICIiCC is three yars imorisonmht. Tne Wpellahts were Owadd seven years each, that is, morn than twicn Os much as thy would eXpeot' I do not Think a-ybcdy opproching the matte with'Th ober • conscinc would Pn I wE abl , tG say this was not mnif'e.stly eXcessIve. Itie not just th-e'pre.vOlenOe of' the. Offence bdt the. c.irciimtance.s Of' • the p'OrticuiOr cse undr review Os well, as the cii'cumstaflce of the -. accused hims''lfewhich 'should aie a -c-Dart in sse'ssi,'ng sentence., No ies •• a court than the Court of AppO itself' held in'R.V. 7noriko Batista (1936) 3 VACA. 23, ChOt thn prevalenOc hi' a particular class of criMe in alOc-Otity is hot necessarily of itself a groundf'cr imposing a more • ser en -tence thathat which would normallyThe imposed In that case the appellaflt hd he. en cohvictd of manslaughter by killing a f,,rgon - thr6ught the criminally negligent driving of hisThmdibd.s -and Oennoe.d to • Sen yaritnOriscnment with hord lobour TheThe.htnOews reducedto on of three ors' hard 1oLour,'Itma ce. 5bervd here Os as done in thegbov-case. that if minimuM sntehcspesO'rited by the lgislOture hOv feIld toThrio for+h the de.olre L deterrence, It is timeThome other - mans weretrind," The. courts should not apfear to -mulatn - thri • ,, . legil-atdi'. Th-'r- bih no coJ or uther reasOn fOr the. se.ntnOs to b - - - abovetf'i minimchn in i'hecseat bar, I will reduce thm to three. (3) and sevn (7 :reors rsp'ctive1y for bar1ary and robbery, /3. 1 - 3 - It was also obsrvd by thlarnd iñagistat that - burglafy folIow'd by robb'-.ry at -tracts cOflC11tiV' Sr , l1t'flCAS. I h 9 vP. not bn abl'' to find, an authority forth'-' proposition and th learnd fflagistrat 8 did not sast on. On th contrary itis now or 'stablishd law That wh'r' two oricr? offñcrs ar2 committd in th- cou.rs' Of on' trnsactio. th s t,?icrs of imprison ncntshould run concurntly anI'ss th-rn b vi'y 'XCptiC)flal circumstancs to justify thopposit: R.V. Iadushi Bulolo, (197) HOD n; 52. Th rOb.7rrifi this cas wOs th' otoom of th- activitis wm thrfor pro5ssms of - th samq transOction. Th- fact that th - - th'ft wa aggiavat'.c1 by an Icnnt of viol ~ ncr, did not in my viw bring th- cas' within thos xcpti5nal cicumOt5nc's that would cOmnrl aThourt to aaopt t' attitud'adopt"d hrin. I TqilI fo that ras5n "t siO.'- th'- cons-'ctiv' orcIrr al -id Ord'r that th r'ducd sntnc'-'sTh- s'rvciThon5arr-Htly. In th r'sult the apprllants will srv a trm of srvn yars -ach. - It is finally notrd that th', appcllants w'r ordrAd to comnnsat th' complainant in t sum of Sfls. 9r35/ It ismot iiit undstood how thig figuI" was afvrivci at. Howv.r, th that th robbrs stol cash Shs. 9, 500/=. Th oth-'r it'ms tan w-'r- of unknown or dubious vala. It ig nxt on rcord that th' sum of Shs 935/u found on Mus5lini's'prson was also to b naid to th complainant. In that •vnt, th'r' is 5 balanc of Shs. 8,565/u wilich it is now ordr'd that it b paid to th complainant by th appcllants in appropriat proportions. - - T6 th -.xnt of th- variations indicatd abov' th q se appals ar- othrwis c1ismiss'd, K. S.K- LUGAKINGIRA lvi WA NZA. AG. JIJDG'? 6th May, 1 975.