19830808 TZHC Mbeya

1 / Tt ]E HIGH OOUR1 OP TAUZJIA Ad JYA APIELLATE flJRISDICTION Lbeya Registry) cRIkINiL FbL iTO. 102 OF 1981 0RIGINiL CRLanAL CASE EQ. 275 OF 1960 OF TiL IDISTEICT COURT OF LLt3EYA DISTEICT AT IiiYA efare: P. R atenmga, Esq., Resident ilagistrate. MBWIGD. CEll . , ... . . . . . , . ...........LiP1-'ELLJ1\TT (Original Apcused.). versus THIiI HEPUB[JIC •e• , .so....o..o...se..00..o.... .... REP0NflhNT CHARGE: Robbery with Vio1ence c/ss. 285 and 286 of the Penal Code. SUDCEJiTT IViUNYERA,. The appellant was charged. with robbery. It was stated that .uring the night of 5/8/80 the comolainant (and his faniily) was asleep in his house, He was awakened, by a bang on his door. Ho went into the sitting room to see what was happening. As soon as he got in the place he was confronted by a garg of robbers. They attacked him and took away boxes of clothes, radio cassette and. money. The complainant slipped ou.t of his house and took refuge in the neighbour t s. Later he was taken to hospital. On 7/8/80 the appellant was arrested. In his defence in Court he aried on 5/8/80, the oloming after the robbery he passed by the complainant's house. Many people were there. They did not say that he was involved. i, the robbery. Some two days later he was arrested, lIe denied. that he committed the robbery complained of. lie was convicted and. sentened 't nine (9) years imprisonment. no appealed at The

issue before the court was the identification of the appeilthit the scene. The complainant (PW.i) and his son (PW.2) said they vere aILe to identify the appellant among the gang The robbers were flas1ing a large torch and this lit up the room clearly. Inother witness, the complainant's. gibour (Pv.3) said after the complainanb was injured he ran and. knocked at her door. She opened for him and. he entered. He was bleeding. e could see the complainaritts assailants outside the house. They were flashing torches. She identified the appellant by voice as well a by his face. 41 three witnesses said -the appellant was well known to them before the incident. ihen ti-w; complainant was aaiitted. to hospital ) the two witnesses (pv.T,2) and. L3) reported to Police and. mentioned tile / . . . . •.. ./2 If (2) appellant. They went with the Foflceeien to Uyole add pointed hire. The learned trial magistrate believed that evidence. I have no reason to fault him. ill three witnesses could not have made mistakes6 The appal against conviction is disniissed. ts to the sentence, the trial magistrate imposed 9 years imprisonxnent He did not have pOwers to impose such a sentence. It was illegal. I set it aside and substitute thereof the niinimun of 7 years imprisonment. With this variation the appeal partly succeeds to that extent At Mbeya, P . . 8th iagust, 1983 JUDGE.