19830419 TZHC Mbeya

4c•:.' 0

IN TUE HIGH COURT OF TANZANIA AT 1VIBEYA - AP2ELLATE JURISDICTION CRIMINAL .iiPT?EAL NO60 OF 1978 (Original Criminal Case No0404 of 1977 of the District Court of Mbeya Distrtct at 4 Mbeya Before: A0R6. Manento, Resident F.iagistrate) JACKSONMSONGOLE . 00 . 00O O.APPELLNT (Origii.a1 Accused versus: T- REPUBLIC 0 0 0 0 00 0 0 0 0 0 o 0•0 0.0 0 • 0,0 • ORESPONDENT Charge: Robber with violence c/ss 285,286 and 265 of the Penal Code

JJD GM NT MROSOO J. The appellant was charged with and vonvictedof robbejwith violence contrary to sections 285, 286.and 265 of the Penal Code0 I should say in. passing that it was superfious to cite section 265 . of tb ena1 Code which is the general punishment secti3n for thft0. The, punisiment for robbery is provided for under soctii 286, which was cIted. The apiellant havinc been c3nvicteC. was sentenced to seven years impris:nment, which is the minimum punishmeit for. the offence, according. to the Minimum Seences Act, 1973. He has appealed against the lower court judgment0 The .shop—cum—dwolling house of one Anaeli s/o Njau: was broken into at about cO45 am0 on25/9/77 and two cartois of Mbuni soap were stoleri Anael Njau was alerted of the breaking in by his daughter., When he went to the shop which he found open ho managed to hit one of the thugs with a stick aid probably injured him. However, - 2 - one of the estimated four thugs wounded I'Tjau. with a panga rendering him temper, rily unconscious He was subsequently admitted in hospital for five days,, The apoellant and iother who was later discharçed by the trial court were arrested about eight days later and prosecutOd for the robbery. As rightly stated by the trial magis'rate the crucial question in the case was that of identifiation of the culprits or any of them. The complainant fijau climed that he used a torchwhen

he confronted the thus and that he was abl.e to rocoaise the appellant who lived near him and was used to, drinking at his bar, although he did not know his naae The appellant was indeed a neighbour of Njau arid visitol his bar, but was he in fact reco.iised as one of the culprit who broke into the shop • during the night hm's? After a aroful look at the evidenoe • I have serious d.)ubt8 if cmplat Nau really te6ognil 6ed any of the peo1e who broke into I'Ii8 shdp, Lear'rid Senior State Attorney who initially si:pported the conviction subequently shared ny doubts roging complaint s claim of having indentified the aellant to be one of the robbers, I note that soon after the complainant had been wounded by one of the robbers PW2 '- Nicocm Kyando, who was a neighbour as well as a ten cell loader came in response to the alarm that had been raise, Njau ga7e a hriE* account of what had hapenod and I think it is impoitarit to quote from Kyando's evidence, the matrial.part of which goes like this:- He (complainant) immediately told me that he ad injured one of the people he toght (fought.?) with, but when hIs stick got broken, one of t.he(m) cut him with a iaha. He told me that he knew the pcople On th second day when I viSited him at the hospital, he instructed me to (go to) the people who assaulted him.. We wont to the home of 1st acused who told us that he were (sic) staying

With three others who were not present0 The P0.il (complainant) had told us that we should first look at the person wPIV ho / - It seems to me significant that the complainant did not mention thO dppellant by way of description or in any other way to PW2 on the night of the robbery 0 On the second day, at the hospital, he does not even appear to hare told PW2 that it was the appellant who wounded him with apanga. Instead he told PN2 to go to the home of the appellant and see if he could find the person he (complainant) had injured with a stick. This suggests that the complainant had in the meantime merely suspected that the robbers might include the people who lived at the appellant's home0 It does not apoear that the complainant had even then mentioned the appellant as a suspect 0 That was why when ?W2 went to the home of the appellant to look for the pe±'son complainant had injured.with a stick he did not arrest the appellant0 The appellant was arrested several days later after the complainant had been discharged from hospital Indeed, it seems complainant's suspiciJuns against the appellant were aroused when the appellant left complaint's bar hurridly on 2/10/77 as the complainant entered0 On the following day - 3/10/77 the appellant was arrestod One other thing which made me doubt cor.ipli1ian's claim that he recorisecI the appellant as one of the robbers is the curious

absence of any memb of comp1aihafl1 familyas prosecution witness 0 If it is true that the complainant grappled with the appellant for bout five minutes one would expect a member of his fa'nily to come to his aid and in the curso of doing so, probably see and ecois the .assalânt0 Bu even his rlauhter who was the first to realise that people wore breaking into the shop apparently did not bother to find out who was assailing her father0 The probability is that the struggle between the complainant and one of the robbers was taking place in darkness and therefore eorrectidntification was not, possible. In view of the doubts I have entsrtainod regarding reliableidentification of any of the robbers I find it unsafe to uphold the conviction which is hereby quashed m the sentenQe of seven years imprisonment set aside. Since the appellant has already completed hi. s p'isn sentence it is futile to order his release0 J.A. DITROSO IVJBEYA, JUDGE 19/4/83 Mr, Teemba, Senior :State Attorney JM/ATM lima.