19771219 TZHC Arusha

IN THE HIGH COURT OF TiNZjNIA •/LT ARPSHA APPELLATE juISDIcTION ITOH CCtJeT CR1NI]\ L iEiL NO, 39 OF 1975 c/F 69/75 ORIGINAL CRIHINAL C. SE NO, 334 OF 1974 Or wHA DIoT ICT COURT OF P RE DISTI'ICT iT Si ME Before S.N. Fundikira ------- - ---- District Magistrate EL1UD 111 - ---------------- -------- --- 2nd i ccused Appellaflt (Original Accused) vrsus THE REIUJLIC -- ---- - -----------------------RESPONDENT (Original Prosecutor) The two aFp:llcnts and two others, (3rd and 4th accused in the 1owr court) were j O1LI, ch r,_d with and convicted of roobery with violence .c/ssi285 n.pd 256. of the Penal Code. Thc two appellants were eachsentenced to 7 yem s imrisonment. The other two ocused wore found to be juveniles and twelve strokes corporal punish 11t wac imposed on ch accused. The appellants ire a p.. oealin g agnct both the con iction and the sentence in admittin the atpils to heiring Nyalali g. J (as he then was minuttod t'idmit Criii ci cp_ls numbr rs 39/75 and 69/75 for conolidat_c1 h_aring Was the 2nd accused prop ny convicted on the cv1_nco" in his memorandum of a cl th first aplinnt, (2ncL actused in the lower court), sys that the evance only proved that ihe had esaulted the complainaht, (P 1), and th t th trial m gitrte erred in convicting him of also sajs in FL cc se\en of his memorandum of app_al that the Lril m istn ,'te refused hm to c -ill his witness. The second

apnliaric, (1st accused), rgu:J in nra one of his memorandum of appeal that the evidence adduced did not prove the charge of robbery against him. s -, vs in parc four of his memorandum of eppeai that he two main .aroccutJcn witnesses, (PW 1 and PN 2), lied against him. in support of the convictions the learned state attorney argued ...thbt there was ample ovidc.nce in support of the learned magistra.te.fiding d referred the court to the evctence of the three main p'.oSecution witnesses - (PW 1, PN 2 and PW 3), . . With respect to the learned state attorney 1 agree that in so far as the second appellant, (1st accused), Rama.dhani Mshamba, is concerned the evidence was clearly against hirr The complainant, (UN 1 related to the trial court that on the material evening he' i.ias at Gonja bus-stand waiting for a bus fo Same when a person hit him on the head, snatched his hand-bag and took to his heels The complainant who was apparently a game-scout had a whist a - he used it and one, issa Mwetn, (1: 1,, 2). responded and came to the scene carrying a torch. With the aid of his torch he saw the bandit running away carrying a bag. He chased and managed to arrest the bandit and brought him to where the complainant was attacked. The man arrested ... running 2/ / -2- running awaywithbmlainent's hand-bag is apparently the second appellant., Ramadhan Msharuha. From the ev-icenca of the

complainant, (PW 1) and that of issa, (PW 2), there could be no doubt that the second appellant was caught red-handed as he was porpafrating the crime of robbery. There was not even the slightest suggestion, lave alone, evidence that the complainant and lssa: hod rson to tell lies aqainst the second appellant. is.for'.the first dppellant, (2nd accused), there was,.l agree with the Republid argument ..thot the complainant said in his evidence that th,e fist--'appei±ont"Eliud Mhike, also attacked him. Complainant's evidence was supported . y lssa Mweta, (PW 2). But with due rdspcct to the learned state attorney there was nobvidence to sup port the learned trial magistrates' finding that the first and the S 010:1 appellants jointly attacked the complainant with the intention cE roino him of his property. On th conthary the evidence showed 'th;"t first appellant's assault on the complainant was totally unconctcd with the stealing of complainant's' hand-bag. For any violence or throat of violence to constitute the serious offence o. roPhery--the pros ecuiion must prove, and prove beyond reas onabie -dopbt, that the violunco, or threat of violence, was for' the purpose of stLallng. it w s not so prove,i.in respect of the firt appellant, Eliud Nbike, On the evidence there can be no doubt that the learned trial magistrate errLd in landing th firat aprellant guilty of the offncc of

roboery. ' The conviction is accordingly quashed and the sentence ia set aside. On,the evidence ih first appellant should have.been: convicted. of the leser offence of common assault c./s 240 of . the Penal Code which ôffence ls PUII_LSI. l(2 with a maximum .penal'ity of 12 months I'- , :) imprisonment. 1ppc"rtly th first appclant has already been in prison for about three years, . . .lt.. is hereby ordered that the first appellant',' - Eliud Mbike, be released from custody forthwith unl, ss he is otherwiSe lawfully held. .....Forreasons' which 1 have, 1 hope', amply demonstrated above, the appeal by. the second apoeliant, Ramadhan, Mshamba, is hereby dismissed in its entirety. , . .. . .'. . JUDGE'

ARUSHA / ... " 19/12/77 Both appellants aesn 'nu unrcprLsented. Ms chU for the RepuOlic/P,s1ond nt,