19781123 TZHC Dodoma3

i4efr; 1: IN ThE ;IGH CtfIJRT UI T;ZA,Iit p ., AT kDOM;.

APPELLAE JURISDICTION CRIMIi''AL APPEAL NO0 25 OF 1978 (ORIGINAL CRIMINAL CASE NO0 167 OF 1977 OF THE DISTRICT COURT OF DODCMA) JOHNS/e•BOCHELA. 00000000000 • . . Appellant (orignal Accused) Ver U S THE REPUBLICO 0 0 0 0 0 0 0 • - 0 0 0 0 .Respondent (original Prosecutor) Charge: Robbery with violence c/s 285 eYrd 286 of the Penal Code,

J U DG N E N T CHIPETA, J. The appellant, John Bochela, was sentenced to eight yars imprisonment on conviction or a charge of rohery with violence c/ss 285 and 286 of the Penal Code0 He now appeals against both the conviction and sentence0 The prosecution's case was largely based on the evidence of the two complainants, namely, Juliana Chalo (PWL) andher husband, Mkaka Mhumba (PW2).' Their evidence Was that in January, 1977, they had gone back to their old homestead which they Irad abandoned after moving to a planned village. They went back to their ord homestead so as to cultivate their old sharaba and herd their cattle, which at the material time totalled 28. On 24/1/77, the complainants returned the caLtle into th cattle kraal. They then made a big fire outside th:ir house and retired for the night0 At about 11.00 p.m. P.W.2 was aroused from sleep only to find himself surrounded by a group of eight bandits who hac broken into the house. When P.W.2 tried to reach for his spnar, he was grabbed by three of the bandits, one of whom held P.W,2 1 s legs, the other his hands, and the third his body. The bandits teen struck P.W.l with a stick and so she woke up0 on seing the bandits she tried to run for her safety, but the bandits caught her. LroPes The two complainants were then tied withy their hands and led out of the house. With the aid of torchlight from a torch which one o:

the andits was holding, and the fire outside ,both P.W.l and P,W.2 b identified seven of the culprits, namely, Laurent Mangwela, Halala Nkalama, Bonif ace Lwabe, Mazengo Mlinga, Sasine Mlinga, Stanslaus Mlinqa (all of whom are still at large) and the appellant, John Bochela,who is known in the area as John Kagulu. Both P.Wl and POW.2 knew these culprits h'-fore because they live in the same village as the complainants. . . . /2 lob - 2 The culprits then opened the cattle kraal and led away the cattle and their two victims into the bush. On their way into the bush, and so as to prevent the complainants from knowing in what direction they were going, the.culprits blindfolded them. Somewhere in the bush the complainants were made to lie' down and all the eight bandits raped P.W.1 in turn. The appellant was the last person to rape her, and b fore he did so, he led her to a pond and washed h'r private parts. At some stage the appellant wanted to kill both the complainants but the other bandits talked him out of the idea. Thereafter the bandits abandoned their victims in the bush and made off with all the cattle, but not before they had severely be.:ten up the complainants. With the aid of his teeth, P,W.2 managed to untie the ropes on his hands and later untied those on his wife. The two then managed to walk back to their homestead where they immediately raised an alarm to which

their neighbours promptly responded. That very night P.W,l and P.W.2 named seven of the culpri ts. The .:itims were than taken to police station and thence to hospital where. they were admitted for several days. A day or so later. 22 of the 28 head of cattle were found in the bush, In March, 1977, the appellant was arrested by a civilian (Pw4), one of the people to whom P.W.l and P.W.2 had reported the robbery and revealed the names of the culprits. p.J.l and P.W.2 identified the appel:Lant before a ward secretary to have been one of the culprits. In his short unsworn statement the appellant denied having taken par.t in the ghastly robbery, and charged that P S W4 arrested him for no reason at all. In a carefully reasoned judgment, the learned trial resident magistrate found P.W.l, P.W,2 and P.W.4 to be truthful witnesses, and having considered the circumstances in which P.W.1 and P.W.2 saw the bandits, he was satisfied that they could not have b'en mistaken in their identification of the appellant as having been one of the culprits. After carefully perusing the record, I am unable to fault the learned magistrates findings of fact and conclusions. The complainants knew the appellant and the other culprits beforc Indeed, they live in the same vil1age The incident did not happen in a flash. It took the culprits some time in the house as they over—powered and tied up their

victims, and more time as they opened the cattle kraal and took out the cattle. Besides, apart from the torchlight, there was light from the big fire outside, and it was not until they started to lead their victims and the cattle away that the bundits blindfolded them. That, therefore, gave the complainants ample time and opportunity to observe the culprits. With regard to the appellant himself, his fellow bandits actually called him by name when they restraind him from killing the complainants. There is also the consistency of the complainants. They immediat'ely named the appellant and his colleagues as being the culprits. That went some way to enhance their credibility. -3- The appellant suggested no reason, nor does one suggest itself, as to why P.W.1 and P.W 0 2 would wish to frame him and the others who are still at large. In all the circumstances, therefore, I respectfully agree with' the learned state attorney that the learne magistrate was justified in' coming to the findings of fact end conclusions which he did. I can, threfore see no reason to disturb the conviction. With regard to the sentence, I am again, with respect, in complete agreement with the learned state attorney that in view of the atrocious manner in which the offence was commtted, the sentence of eight years' imprisonment is manifestly thnadequatc. The interests of justice cry aloud that the same be eihancod. For the foregoing reasons, the appeal is disd.ssad, and it is hereby ordered thet the appellant be called upon to show cause why the sentence should not be enhanced, rn (7/44 ( B. D. CHIPETA

JUDGE Delivered in open court at Dodoma this 23rd ay of October 1978. B. D. CHIPEI'A

JUDGE 0 • j

IN THE HIGH COURT OF TANZANIA • APPELLATE JURISDICTION CRININAL APPEAL NO. 25 OF 1978 (ORIGINAL CRIMINAL CASE NO, 167 OF 1977 OF THE DISTRICT COURT OF DODOMA) JOHN 5/0 BOCHELA. . . . . . •Appellant .........-•.-••••... .. • (Original Accu:ed) Versus THE REPUBLIC . . . . :. . . Respondent (original Prosecutor) charge: Robbery with violence c/s 285 and 286 of the Penal Code,

ORDER CHIPETA1 J. I have carefully gone through the reasons advencd by the cOnvict as to why the sentence of eight years imprisonm'.nt should not be enhanced. But, as I observed in my judmnt when I dismissd the appellafltts appeal, the offence was committed in a very barbaric manner. The manner in which the convict and his colleagues treated the wornan was atrocious. A dterrent sentence was ca11•:d for. In the circumstances, therefore, I respctfu11y endorse the Republid's contention that the sefltence of eight yars imprisonment is manifestly inadequate. It ought to be enhanced. I accordingly enhance the sentence to twelVe (12) years imprisonment. B. D. CHIPETA 23/11/78 JUDGE