19750815 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA - - AT MWANZA - APPELLATE JURISDICTION HIGH COURT CRIIIINAL APPEAL NO0 92 OF 1974 Cf0 CR0 REVISTO NO. 4000000000F 1974 ORIGINAL CtI1V1INAL CASE 140.323/73 OF HE: - DISTRICT COURT OF GEITA DISTRICT ATOOOGEITA. BEFORE L.G.RUGIMBANA Eso.. 0 0 DISTRICT MAGISTRATE DEUSDEDITMALANDAC 0 e 0 0 0 0 00-0 0 a 0 0 0 0 0 00 0 o 0 0 0 o 00 0 0 0 o 0APPELLANT 00 0 - . S (Original Acused) versus THE REPUBL-IC 0000 00 0 .,000000000•00-0-.000000000000000.00....00RESPONDENT (Original Prosecutor) CHARGE 1st Count - Robbery c/s 285 and 286 of the Penal Code 0 -, - 2nd Count .-Personating..a. public offidr c/Os 100(2). of .• •- the Penal Code 0 3rd Count - Wrongful confinement c/s 253 of the Penal Cod.e0 - J U D: G E H E T LUGAKINGIRA, Ag.J.: - The appellant was convicted of robbery, personati- ing and wrongful confinement0 :.He was awarded sentences of eight, two and one years respectively, all running concurrently0 On revision the sentences on the first and second counts were reduced tose'en years-and one year respectively0 He has now appealed against convictions and serl- tences. It is the rgbbery offence which presents some difficulty0 There - was otherwise more than enough evidence to establish the personating and confinement offenes. 0n9 September, 1973 the complainant, an aged man, was selling folding knives a1 Gengesaba Market in Geita District. - The appellant

approached- him and offered to buy a knife 0 Feproduceda 20-shilling note which he gave to the complainant. The latter gave him a knife, but in a twinkling the appellant snatched the money back0 It appears that the complainant protested but the appellant held on to the money and the knife, threatening to arrest the complainant for carrying on business without a licence0 Indeed, he did exactly that, after introduc- ing himself as a policeman, and led the complainant to the Ward Executive Officer0 It would also appear that this process was not without a strug- gle0 From the Ward Executive Officer the appellant demanded and was given handcuffs with which he handcuffed the complainant0 He then purported to lead the complainant to the Police Station but brought him back some two hours later. As luck would have it at this moment true police officers happened to be driving by0 The Ward Executive Officer, who had now become suspicious, called them to the scene0 They interrogated the appellant who repeated his claim that he was a police officer. As he could not substantiate his claim he was arrested and accordingly charged. The evidence about personating and wrongful confinement was given by the complainant (P.W01), the Ward Executive Officer PW.2), a school teacher (PW03) and the arresting police officer (PW.5). I cannot imagine these people conspiring to concoct stories against the

appellant0 The trial magistrate was trial magistrate was justified in believing and acting on their evidence. I will in consequence uphold the convictions on the second and third counts. As indicated above, the evidence of robbery presents some diffi- culty0 It comes from the complainaht.alone and it i exceedingly con- fused. The material part states: "1 told him that I was selling 20/= each knife and he produced 20/= and then seized themby force from my hand and he took my knife and he pushed me I fell down with my bioycle, and immediately he told me that Iwould collect my stock, and I collected my articles, I wrapped them in one bundle0" That story was not corro- borated by PW4vtho happened to llae at the scene. According to him when the appellant learned that the price of a knife was Shs. 201= he com- plained that it iasexorbithnt and demanded .a r?ceipt.. The complainant wrote out one. The appellant then took the receipt, the knife and the money which was lying on the ground and "arre.sted', th,?. çompiainant .:Thre was tdtest but 'PW.4 advised the complainant to obey the appellant's orders as he, too t thought that he was a genuine policeman. It would then appear that whatever struggle there was had nothing to do with the taking or retaining of the knife or money but was a result of the com- plainant's resistance to arrest0 This view of the v1dEnçe finds some sup- p±t in

the fact that the complainant fell with his bicycle which sug- gests that he was being forcibly conveyed. In robbery the vto.ence or the threat of it must be directed at facilitating theft. If the two are unconnected the culprit should he severally charged with theft and assault. It does not appeain this case that th appellant used violence for the purpose of taking or .etaining the knife0 Incidentally, if the appel- lant held on to the knife against the complainant's efforts to regain the same, that was passive resistance whidh I apprehend to be different from posite violence. 1 therefore find it unsafe to sustain the conviction on the first count which I 1erby quash and set aside tIe entéhce imposed0 There is no doubt, however, that the appellant was a thief. He did not have to retain the money•. and the knife if he did not intend to steal the latter. I will, therefore, substitute a conviction for simple theft and a sentence equivalent to the term already served which I note is over nineteen months. The' appeal, therefore, fails in its entirety and is dismissed with the above variation. As the sentences for personating and confine- ment hav€.. already been served, however, it means that the appellant should now be set free unldss fuEther lawfully held.