19710716 TZHC Mwanza3

V Iii Ti I-nc-H COUIT OP Tif:AiTIL - I.r:AHZA Appellate Jurisdiction Cai:Ii'AL APPEAL NO. 666 OP 1970 (Orginci C juinl Case No, 44 of 1970 of the district coert of Kasulu before LI. J. Lung' ombe Esq.', district Liaistrate). i'IPJLBALUKA 8/0 iThiiZh\ZAIU . . ... . . . . .• . .APPELLAPT (oiieiiit AcCUSED). versus - TEPEPUBLIC,. • . . . • • • • • •EESP011rDT (OdIGIPAL P1iOSECUTOLi) £TAPGE: 2 count of robbery c/s 286 of the Panel Code. d U5iLi'U 1911 _3 The appellant Mtsbduka Brthazari and two others who were referred -•t-o -in ttidTicr court as accused-1 and 3, were charged jointly with two counts of robbery contrary to section 286 of the Penal Code", Accused 1 and 3 were acquitted but the appellant was conictcd and sentenced to two years prisoiieicnt on cach count to run concurrently, plus one lot of 24 strokes of corporal punishment. He now appeals. The facts were that on the material day the complainants P.7.2. and P.1.3 left their village cnd went to Kasulu town to sell GObCCO. After selling.the tobacco, they then wnt to catch a bus to return, to their village. P.Y,2 had on him Eb.70/- and 2.7.3 had on him .65/-. 1 hi1c they , 1 were at the bus stop, the appellant dropped a wallet. P.7.3 picked it up and duly told the appellant that he had dropped a wallet" The appellant, however, accused P.. .3 and P.1.2 of - stealing thatwallet anti asked thri to accompany him to the police

station. Accordingly, he led thai on a path leading to a river On arriving at this river s accused 1 and 3 emerged ( end asked the appellant if P.1.2 and P.1.3 were the thieves nd he said Yes Accused 3 asked P.7.2 and P.1.3 what they hd come to Kesulu for and they told him that they had come to sell tobacco. Whereupon accusan-: demanded from P.7.2 and P.7.3 the money they roalied :Erou selling t i e tobaccoi i-Ic forced P 4 1.3 into prod.cing ti-ic eoney. Ho than oserched the witness and obtained from him .65/- which he passed on to the first accused. Then accuecd3 demanded money from P.7.2. P.7,2 refused to prluce the money but when accused threatened to hit him ho prodused .70/- end handed it to accuseci-3 who in turn psscd it to eecussd-l. The accused persons then ordered P..iV.2 and 3 to go ce:ay. Tho witnesses reported the matter to the police and later on they-id'.fied the appellxit a an identification parade conducted by the police". The learned trial magistrate found that there was not sufficient evidence of identification in respect of the first and tlnrd accused and consequently ho acquitted them. The appellant put up an alibi that ho vice at Ujiji on the material day but the trial mgistratc accepted the prosecution evidence and accordingly convicted him. j .4 .. .2 A nunbor of quostions have bon ralseci on this cancel. In the first 1)10CC, was a you person ood 13

ycers who dave ov;o::n evidence, bu-t before doin" so the trial rriistra -te does not appear •bo 11.1 vc investidotcd to find out ±1t!. child knew the nature of an oath, It would score fran reedind the jud':Icnt of the trial court that the 1 earned naii strata trce. :b od. P... .2 as a .younc person In those circu:stencos, the evidence of such a eiitnoss should bo received, in co::plianco with the provisions ol section 127(2) of the Evidence Act. That subsection provides in effect that where- a younrj person is called as a witness, thc c airt has a duty to find, out if nec, child understands the nature of an oath. If the r,novrcr to this questio:r. is in the- firnativo, then the child nay aivo its evidence on oath or affireiation. If the answer is in the nodativo, however, then the court has c. duty to find otth if the child is possessed of si..d'ficiont inte1lienco to warrant reception of its ovidouce and if it understands the duty of speakirz3 the truth' So far as it appoors frau the record, however, no such investihatiOn vias node. Such ouission therefore, onounted to an error and the question is whether such error was fotci to th conviction. In the case of KIBP.TC-EIIU AJAP KOLIL vs. B., 1959 9 E.A0, pare 92, prisoner's conviction was bed larhely on tiioovidenco of two boys aped respectively between 12 to 14 years on d fron nine t a 10 years • The t'S'O bOyS Cave evidence

upon affirciation but there was nothind, on the record to show that bof they have their evidence the trial court wasstifid that they understood the nature of an oath; The Court of Appeal cjurhed the convictic:.. on the Cround that since the evidence of the two boys vTas of so vital a n1-.t1_ixc it could not be said that the onission had caused no failure of justice. In the present case, the nain question to be decedod was the identification of th". appellant.. Evidence on this point 'ene ven by ?.. 2. and P..:. 3 oeh of whom, eye-witnessed the- incident and P..:.3 was on , adult. The evidence of P.W.2 therefore was not of so vital a nature because tic identification of the appellant was not based solely or nainly on h i s evidence Unlike in the case of KILAUGEBY,. therefore, the error could not be said to have caused a failure of justice The learned trial ieadistra -to found that the appellant did not take part in thoactua.l act of robbery, but hc convicted 1ira on the basis of a counon intention. It is clear that the nero presence of the appeflant the scone of tho robbery would not by itself be suffici.rit to iuplicate hire with the offence. But there was evicicncc that after the appellant had led the couplainants to a rivcr two persons coerCed. and csked the appellant if thio couplainonts Wore GIlO neioves one ee sOic 1 Ycs' • It shoulo ho noted that the appellant had.

accused 'the coeplaincnts of stealin his wallet, and that is why he was loadinC t1oe to the police otation. ITow, if there had boon no prior crraareuent between appolL at and the other two persons, how did the other two know of ..he ollede,tion of theft adainot the cooplainnts? ACain, the appellant was leadi -_rZ the couplainants to the 7 . . e) police to accuse then of stealing his erallet, but after the two persons intervened and robbed the conplaincnts 9 tilcv told. the couploinents to go ciay and the ceuplainonts did so. It the appellent was nero of and uwCOflnOCtUd with the robbery, why was he. cecitented to no tho cociplainents ceird, Jt away ore hine grievance aoaiustheae was hcc-.rd by the police ned a renody given. To iey caind, there acne circunstances art this cose Oro v;hidll the trial uagistratc could infer as he did, conicon intention between the appall act and the other two pe roons to rob the conplainnt and there- tore I see no reocon to interfere, The other cuostion rei sOd was '.chctber the robbing o:. the two coupini- rent set. the ia-ale fine constituted only one offence or two ecperrto otfences The evidenc shows that P.h.3 na t'catoned and searched first fed otter tice moany was obtained fron hire, then P.h. 2 eiari alOe threatened e:c.d scarcho (1 nd the none y was taken fran hire. It would oecri that the throat and the scorch in respect of we ch C

oraplainont TCL'C a separate transaction consfitutii two separate otfences end in rey view ouch separate off arc es were properly Clacrgod in sepruoatc counts. Itio noted that the - cnorges were baoec on section 266 of the Panel Code which ]ercscribas the punisbreont for robbery. This was not proper. The chrng;co should have been based on section 285 of the Penal Code which creates the offence. however, the particulars of the offence set out clearly the offerces of robbery, so that tho eppellent 1-mew the o:ifences with whack he vas being charged. In the circunstancos, I an scotioficci that fbe e:::-:or did not occasion a failure of justico I would thertore uphold the conviction and dieeiioa the appeal C. inst conviction, and since the sentence icipoocci is tao iiiiiliiiiUi.l prescribed by law, the cppcJ- against sentence is also disnisscd Societhingrcaieins to be said abon t the orders :endc by tie trial court. The appellant was ordered to p1r compensation of h.70/— to P.7 , 2 rued, i.65/— to P.W. 3 after his release froc: prison. This court has repeatedly directed that the order for coelpensetion should be :çada to teJoc e:ifect inoedirt ely, but the trial nagi strafe would apilonI' - to leave overlooked U. diroctioii The smid order ie therefore varied such that it should fake- effect jane diately it was nade Agein, tue trial magistrate ordered a foreituro to the

Government of b.25/—. which was found on the 3rd accuse ci Jones Eeneoeaucl who wan acquibted In arching that order, the trial magistrate took the view that no evidence wan given about thatsun 0±' nonoy. Such view kowover was not supported by the evidence. Tlae third accused in his sworn 'steteiinnt said tT:at pn his arrest he wee searched by a police officer 11110 found on hire Ec.25/—. P.h.4, a police offccr, said that one Alexander, another police officCr, banded to him 2e.25/— which he (Alexander) saic he tund on one of the accused persons. It would se eel frore this that flea h.25/— was. found u:. the third accused Section 179(a) of the Criminal Procedirna Code providoc that:- A ... 4 W1aerc upon the apprehension at a parson ch rCod with an offence, sny proserty is taken fran i1i, the court he:torc which he is chaipec1 nay order tht the property be restored to tllS person who appears to th COUrt to be entitled thereto, and ii lIn 130 the person cbaraed, that i4 be restored to hin. Thero is not ny as. the evidence to sst that the E25/- t1onhs to any parson other than the third accused who was found in pooscesion of it, nd in accordance with the provisions of this subsection, the r.ionoy, should be restored to kin. Consequently, the opdor of forfeiPaw is sot aside and instead it is ordered that the h.25/- 1)0 restored to the accusod Janoc Es:cnuel. Delivered in Court at knauza On 16th July, l971. Kisca) p fppea:canCes:- Kulunys, St0to Ahuo:cney, for Republic. Appellant absent.