19810909 TZHC Mbeya3

cjm. !L IE cii: CGURj Giv TiINZA .iIi AT EBEYA jPELLATE JURISDICTION (. (Mbeyi. Registry) f-_- '.-- .--- - I CRflVIINJJj liPPEiL NO. 124 OP 78 C r ORIG INA.L CRILIINIL CIE NO. 229 OP 378J4N 12 OF THE DISTRICT COURT OP TUKUY TC AT TUKUYU MITEDI GEORGE & OTHIRS ..'.....°.... APPELLMTS rsüs T} REPUBLIC ....................... RESPOiDEiT CHARGE: Robbery with Violence c/ss...2e6 and 285 of the Penal Code, Cap. 16 Vol.1 of the Laws. JIJDGMBJT MROSSO, J.: Three appeals, numbers 1 24178., :177/78 and 178 In whioh IITE1DI GEORGE, PAULO SQLOMOi ath SANSOt MW4KPESILE respectively are the appel1aii4,, havq been con&o1ic1at.ed for hearing-i These three appeilats together with two others who do not appear to have appealed were convicted for robbery by the District Couit at TU1U1, he three appellans tog&ther with the tio61he's who have not appealed were said by threè i'oecuiO witnesses to be well known residents ofukuyu tewnship. At-about 8 p.m. of ZT.5.78 4jhs e five'èin. a.,U. a.. sixth Qe ;who,. . was not arres43ed and.ther oro. prosecuted were-'eaid to-' have been seen ting-'outside a bar known as 3avaah. Oe of the prosecution witnesses Nahamudu Sadiki - said he äs DlU±O shern c1ectic 11ht)twhCh as outside the bar.-' -• - The complainant, one-'Bton : .Mwakatobe - while in 4ihe-company of Mahamudu visited Savannah Bar that eve'iing intendárng He presentod a barman with a 100/= shillings note. It was however returned to him as there was n0 beer In ............... the ba .In the appellts wei&-8a iM i ndOt àFa 1t M they saw Bato"_`_ 'rd;beiving back tè 1amai h bO/t ' - - Whe'n and Mahàmudi were eing the ha±-are'à the ,','.-. -. y - .,-. --•- -... - .- .......J I .1 eI1ai.pt PaiIo Soldmôn is reported-td-havè 'thrb'wna '-steé e.. -. -, . at' Bton stôäch. Bon foIl down and lost consciousness. - r :r j,. 0 F-' (2) All the six met, are the'isad to have rus They quickly searched hima,d made away wi*hthehi-11iigs 100/ rote. They howevei a11ogoLJy left utouched another note-of Shs.201= In Baton's pocket. Bato' was subsequeitly take'i to-hospital. At the same 4ime a report was made to the Police and five of the six persons were arrested and prosecuted. At the trial all five accused persons gave defence of alibi. Paulo Solomon said he weuld-°call a wirtess to support his alibi but there is no indication from the ower court record what the trial magistrate did with that-'intimation as immediately the last accueed person fInI&hd giving his defance the magistrate aoanced judgment would be - delivered at 5 p .m.- of the same day That may have been commendable speed i,-'the disposal of the case but not at the expense-.of denying an accused orso'i the opportunity to get has witness to give evidence iih4S favour. .As,wo do nO know the full effect of that dblence witness had he given evidence the failure by the tral magistratete allow time -, -. . •-- -r • y. --. ± for tbe óäi].edthj 'a hô dfàiTh±'ë o3istice As it is tii4 tria".1'''thàistb / blame d the accused persos oi, theifàlure vocal wieesea -lr "prove-.their alleged journeys. (alibi). it (I ) fl wãs any aë'wfng foi thëiágistae tbëxpèd tb ---------- - --- ---- ---'- r -H aecused persons bere -fo hii --to-ove jhoir alibi to be true as, i ±h4,o iS n such burden en an accused person. It 15 enough if an alibi which has been.raisedoud possibly be I' "-- tru. Itwà theforeoiàar misäie.ctIn o.-t.hépa't of sla -S the trial magisrate when he said: - 1i of ctefónc& ..MosT'.Qf4Iem ty1n thoii otiçe of analibi. That niht 'be take'' 1nO r /.. t ieouif'at pvn.e i for ách toprov heirllóed jbàres.t' S - -. .4 .J Th & mastrate-hd i a disbell ovodth-e -' defence version nt 'oI _ - - - . ,... , .-- .1_- , '--- -" -S ./,- •é '4 because he 4oun d it- palpa bl unte4qa1le but because ii had '1 o supporting evide1e. He was ip othea wos,putting On - L 3 1 thedefencea- burden of proving their in,ocence v a frame ofmtnd the magstrao would, and may have done - -- _., 5 -. •.: - ...', ou-'a-.;. so*, convict-snot on the streth of t)ie prosecution case but J I on.the weakiess of the defosce. 5- - 13 - (3) —I -The prosecutio case cai.ot('be said to have beer stroge All the accused porsoi said they had bee airested i.iitially on suspcio lt they-had broke'i into one Nudokesi's shop avdoi,1y,Lappareitly, oi., secod thought, for robbi-ig complai.ia. If what the appellaits It I said was trie it-.would meai thatthey were-.arràsted more on susicio, than or olear ovid'eice of idetificatioi It is not i igificat toote that the arrestig PoJice Officer did not give ovide'ice so that we do not kow on what basis he arestod them. We dO.,ot know if had bee giver a desciiptioi or !lames of the porse1sIwho a'legedly robbed Bato, and whether the descripto-ad o1'-ames as givei to him agreed with the descriptioi and or names of the appellants. Bvev, at the trial the evidcc of the prosecu- tion wit,esses regarding the ide'itity of the alleged robbers was o±'-a very ge,eralisod typ, hardly of the type that would pinpoi'it a suspect. I shou-Idi also say that ki'id-of evide'we should have been givei streth by ovide.,ce of a., jde1tjfj- cation parade, which was herlackivg. rir, 'r 'i Ect ­ '1 ' ;c i. ain mrsëlf satisfied that the 'cas e f o r thë -. '_L I prosecuti proved the guilt-of the apollasit S wi±hitho i } u kiid of certy required 1i a;criLajal rosecutio-n and when that 'is côuled wih the m di'ctiovs o4' the trial 6 1 f''i'­,t L 1•t- --' 1 mIte,' I fincI' it ujsoj i6 üh6ld 1ie covic .tiors 3uct -J tr i-'i respect of the appeilats . I-thefefore allow tho- - 1 I' ) . -t 1 1.( ti I- 4 appeals, quash the cov&ctice and s e t aside the p1son sevtances and the compensataon-'order. The appe1la'its Of f C1.,Y' •-;.t. rj.c: Ij ... j . 1 •; r 'i . t , ?' •-1 - a±'ë o 'be set free forthwith ui1ess held' fbr some other' a lawfuL cause, - •1 -.-rr ' - r:j'iL'Jt ,-- - h'13 jr' ; . Jv- ..t t., tJ: j''-i - ic'si ..jtc :c r'-7c'-r..t''. •. •-•. Nbeya J A. NROSSO .. ,-" JUDGE j 4. I-.................* 9th eptember', i981 • oh] b ;. i :- :'-i ctic- :cii •' .; --r tki-- :. HCl • hL. U kI , L •I pro.cat13' y'?vY..1 i. - - - - 1 •• iz1:i ( - t•'--t, r c-1; - I - II -