19761105 TZHC Arusha

- IN THE HIGH COURT OF TMTZLNIA ~ _ L,Wq-, AT ARUSI-JA APPELlATE TlJRISDICTION' HIGH COURT CRIMINAL APPEAL NO 242 OF 1975 ORIGINAL CRIMI1'TLL CASE NO.58 OF 1975 OF THE DISTRICT COURT OF LUSHOTO DISTRCP AT LUSHOTO BEFORE: M. M. SEMBOJA, Esq . ., District Ngistrate KASSflLftJ SALEHE .. .', . . . . . . . . . . ... .. APPELLANT (Original let Accused) versus THE REUBLIC . . . . ... . . . . . . RESPONDENT . . : (Original osecutor) J1JDG1ENT NYALALI J. . .. ,. The appellant, who appeed. ss the First accused at the trial, was charted with two others in the district court of Lushoto District on t'.vo counts that is Burglary c/s - 294(1) of the Penal Code in the first count, and Robbery c/s 286 of th saiaio Code in the second count, and, was sentened to'the•statntory minimum, sentences of:.3 years jail.. and 7 years'jnil onthe first andl socond.counta.respecti'v-ely and was ordered to pay shs.3 9 5001= to P.W.1 as compensation.. He is now appealing to this court against the convictions, sentences and the o.rde' of compensation. Briefly, the bE .bf the cso according to the prosecution are that duriiñg.: thc higlit of 22nd/23rc1 February 1975, P.W.l # who owns and runs a har-businoes at Bumbuli, was asleep in her room together with P. 117.2. In. ohor rooms of P.W.l's promises there slept P.71.3, P411.4 and P.W.5 who were bar-maids employed by P.7.1. A gang of 4 or 6 people then raided P.V.l'o premises and broke down the door to PJ.l's room. They demanded money from P.11.1 and in the course of their demand they assaulted and injured P.V1.1 who then produced some ss.5OO/ which at the gang's request, she threw outside her room to the gang outsido. Furthermore, the gang forced P.11.3 and P.W,4 to open their room and P.11.3 was escorted to go into P.W..'s room to fetch out P.W.l's box for search by the gang. Under fear for her safety, P.V.3 complied and she entered P.W.l's room and brought outside P.11,1's box which contained some th.3,000/= in a bottlo. The gang broke open the box and took away tho.naonoy. The trial court acquitted the 2nd and 3rd accused mainly because it found coma element of truth in the alibi put forth by those accused persons, but convicted the First Accused. Now, as conceded by LIr. Loomu-Ojaro, all the evidence of. the eye-witnesses that is P.11.1, P.11.2, P.11.3 9 P.11.4 and - P.11.5 -with the exception of P.11.4. appeared to pin-point the 3rd accused, who was acquitted, as being the person who played the leading role. With the ......... /2 .' 4 r -2- With the exception of P.W.4, eitherP .7.1, or P.\.2 or P.W.3 and P.W.5 could identifi the let accused as being a member Of the gc : ng . With retard to p•74Ic3 cvdeLc , she cUi1 s that she recognized the let accused when he entered the room where.. 4 P..3 and P.\7.4 we sicoping end cscorlcd P.W.3 GO go into P.W.ls room to fetch outside PW.1ts box. But this evidence by the evidence of P.W.l and P.W.3 ' who catogorically.testifiocl- that it was .t1.ç 3rd.accuscd. who did. so . In the fc.c of this matria1 contradiction about the identity of the let accused., the conviction cannot stand and it is now civashed and the sentence and order are set aside with directions that appellant be released from jail forthwith unless detainEd therein for other lawful cause. (P. L. I'TYiI.LI) . . JUDdA Delivered nie C cy of 5th 1Toveibor, 1976 at rusha, in the presonco oflAii1r.. Koshumu, state. Attorney and the ahjenco of the appellant who . did not wish to appear. (P. L. iJJLI) FLN/IJTPi. fl.JDOi. .. ... .. ... ......... . .