19830422 TZHC Arusha

(c • IN THE HI GH COURT OF TANZANJIA AT.. ARUSHA CRININAL A?PELL NO.231 OF 1978 ORIGINAL CRININJtL CASE NO .29 OP 1978::. (From the decision of the District Court of Hanang at Babati... Before: J.N. .Nimkazza,D.N.) JtJMANNE ITCJMA & 3 OTHERS .. •,•• • APPELL1tNTS (Original .A.ccuseds)

VERSUS fflTJ 1TTC I.L.I.L LLJJ..O.U..LJ..L'J . . . . . . . •. so.-.... so. a S sass L..JSJL.'.J WJ4L1.L. (Original Prosecutor)

J U D G E N E N T

CHU J In the District Court Babati 4 persons namely (1) Ramadhani i.Jusa (2) Junia Ramadhani (3) Jumanne Juina (the appellant) and:.(4) LTusa No-see were jointly charged With robbery wi.thviolene c/s 285 & 286 of the penalcodo. It was alleged that on 25/1/78 at Natuia village they stole Shs.l985/- from Lazaro Ngoroi'i and used actual violence in order to obtain and retain that money. At the trial the let and 4th accused persons were acquittod while the let accused Ramafthani Musa and the appellant Juinanno Juma were convicted and each was sentenced to 7 years imprisonment. This appeal is in respect of Juman.ne .Tuma who was the 3rd accused at the trial. After perusing the proceedings of the lower court and the rnemoranftum of appeal filed in this court I find that there is a wide area of agrement between the prosecution and the defence, It is convinient to cover the common ground first. There was no dispute that Lazaro Ngorori (PV.l) was employed by one Hotia Visa as a salesman and watchman on his agricultural farm. It was also not disputed that on the night of 25/1/78 P'.l had been on duty and had with him cash shs.1.,985/- which was realized from the sale of maize. It was further not disputed that at about 3.00 a.n. at night a group of people assailed P?.l with a panga, sine, and spoar and took the cash Shs.1985/- plus the torch P'1.1 had been usin&. R..rt11ni -2- Regarding

matters in dispute there was only one issub in the base, namclr whether P'11 was able to identify his assaillants properly. For the purpose of this appeal I shall cor.fine myself to the question whether PW1 identified the appellant properly. PVi.l in his evidence deposed having boon able to soc his assaillants by means of torch light. He specifically stated that he knew the appellant for the last ten years and that theyaro village mates. He went on to describe the appellant as having wielded a, spear on that night and that ho wore 'a trouser without a shirt. He also stated that the appellant and two others came very close to him and in fact searched his person in their quest for money. Juad soon after the robbery PVI1 mentioned the name of the appellant as being one of his assaillants to Tlaari Ngaida (rW2) Charles Barwani (PW3) and Andrea Kurya (P'i4 ).. The dofe.d.co of the appellant was that on the material day he was 'at Kondoa whe±'e he had gone on 24/1/78 to see his sick father. This evidence was contradicted by his own witness Rashidi Yakobo (DI3) who told the court that in fact the apoellant on 24/1/78 had travelled back to Babati from Kiongozi villagb and that he the witness did not tell the apoollant nor knew about the sickness of his (appellant's)fathor. No wonder that the trial magistrate found. the alibi raised by the appellant to he bagus.. The trial maistrato was

mindful of the danger of relying on the icntification of a single witness in circustancos which were not favourable as laid down in the cases of RJtJABU MPJIAZA V. R. 1968 HOD 102& ABDALIJH VIENDO v. R. 20 EL.OAi66& LUDOVIIa KhSHUKEJ v. R. 1967 HOD 194. But nevertheless having weighed the evidence of PV11. carefully it becomes clear that the circunstanccs in this case were favourable because of the torch light, noon light and the fact that the complainant knew the appellant for the past 10 years. I soc no reason to interfere with the conviction in this case and as the sentence was the minimum the appeal is dismissed in its entirety. L. R. CHIJA LRC/VJobn JUDGE 22/4/8