19890425 TZHC Dar es Salaam

IN THE HIGTI COURT OF TANZANIA AT DA.il.ES SALAAM

APPELLATE JURISDICTION . HIGH COURT' ClU!IDIALJi.PPEAL N0.169 OF 1988 - ( ~ ~iginal CriainaJ. Case N .u6 of ·1900 o-r th.a ~ - CoUri 0 . . of Morog.oro District at laoragoro) ~IADIIAllI Jma •••• "' ......... '••.••••••••••••• I . . . . . . . . . . . . . . . . . . . ,L.PPEI,IJUf'T · · ( Or.k,'"'inal .Accused) versus- Tlllll UNITED REPUBLIC.~:.~ ...,.. , •• ••~•.••·••.•·•, •• .-, ••••• • •••••• TIESPOJ:tDm.TT . ( ~"'illal rnseoutar) / ·.JUDGMEUT .. ·..... W;i@lt Jt RamadheJJJ. Juna and Kassin .Ally ~~ ,o~Ged. ~ with five ~ s µ1 ~ · ~~ .O~ C:ri raj nal Case Uo,.116 of 1988 of va:rious . ott.e•s• There were a total.. of 7 accused persons and Bama<l.baui and Xassim were 7th and 6th aJJou.sed. rGspootivelzy", . . The accused . 1 to 5 were o ~ d with two counts of robbery with viol.au.oa while Raclailhani ond. Xa.s~ were oha:rged 'ld th being accessory a;f'ter the second robbe:cy. The ' .f:l.'a a0ousod were oonvic'.;ed 2,s charged -while Ramadha.ni and Kassio were .also oonvioted as charged. Ranail.hani and Kassim are no~ appoa.liDs" ~sz t.hoi:I: O-Ollvictions eJld se11tonoes of 4 yea:rs ~nment eaoh. The· faots which ware i'-o'llnd to be t1'Ue are that there were two ,:obbsries with violence in two villages in Morogoro _Distriot.. The SGQond robbery· was on 26/4/8G at night which was aotually on '21/4/88- a.t around 2.15 a.~ Tho first aocuaed was one of the robbers and. he was shot by

his 01-m gun ~t his le~a• He managed to go to the homo of a. fellow robber one Boni whose hooe was· near the house which was robbed,. NOX'b .dcVI the· sixth accused, vm.o was a taJd. driV°'3r of taxi oar Ho• TZ 3548 tdth number 50 at its do01'1 · was hired by B011i to go to Boni' s plaoe 4',o ~ tho ·first acouood. The 6th accused drove ;there in oOiilPcm.Y of tho 7th accused. . Thq found the 1st acousec1. tb.GJ:e and he· -was P'..tii: :ln thei,1;" VGb.i,ole end they drove hi.? from this plaoe wh:ich is ~aJ.led IG.lo~ Village ~ Tungi vU~age l e ~ him® -the ma.i.ll road to D~ es S~aan. - Phe· ta.xi oab d:riven-by- 6th aocv..sod wns seen by one Chuld.a Pi,:S a.t t.'1:le hcsu.ae 0£ Boni on it/4/88, ,·rho al~ ~-'G1.1esscci ona person·~ e;.:a-ied into tho vebiole by three people.. PW5 also. saw that this oan who ·was oaxriad. 1ras blcoding froo the legs,.. In their defence the 6th and 7th accused adnitted. tha.t they were hi.red by one Borii · to go and tako a siclc porso11 from. his hol'!l8 to '.l'u.:no~ .V'ii.,~e-- - ~ - lJ:Q.~. ~~ seej::a,,,:_ ·f:!W b:J:.oqq.. ~ l~o,~. that :this ~ok 2 ... J.n his. jUdgment .the learned. senioi• Resident Magistr.1te first of all wond~red why. on)j>the ·6th.· accused was selected to go to Kiloka. He also said that there vtere:·stancli;ng instructions from the owner. of the taxi' c.ab driven by ,;he 6th' accused ,not to drive' it f~ from the town

and· ih bad roads •. The accused broke these instructions and tho . . wo?l(l.ered · . learned Magistrate . ·:. /V ,.. why the accused wo~d want to do ·!;hat;. The lea:rned Magistrate also found that since the 1st accused· who was carried into the oa;r had bullet wounds the two ·accused mu.st have· seen these wounds.,- He concluded that :the two accused must have had a oonmon inte- ntion hence the:il.' oonno•tion 0 The accused persons set out very long petitions of appeal .. The Repuplio did not 'su.pp0rt the conv:i.6tion. The only point· for decision her-e is whether the· accused. _aided the :robbers knowing tha·t ·a· :robbery- had been conmi ttede With aue respect· to the le~ed Magistrate, there is no evidence to. establish that. _At· most there ·_are only· suspioiali.s that ·the ··accused might-·have known· of· the robbery· and tl::iat .they were assisting robbers. Even the ·f aot that the 1st accused could not walk does not oonolusively prove that the -1st accused person had. been shot in the omn-se of a robbery.: Tl.1ere is no evidence that the aoou.sed were aware of what had ·happened. 'Indeed it would be strange if those who were assisting the wounded robber were to disclose the true fao-'c;s to str&Jger~, for there is no eVidence to sl:i.ow that the accused and those _who· hired the taxi were lmo1-lri ·to one another. The sixth accused i-Tas dr.iving. a. COilll!leroia1

vehicle which oould be hired_ by. anyone who could Pc!V' Even the f'a.o·t that' 6th accused drove a long distance outside the tmm Qontrary to his - emplo~r~a' ~ t i o n s does not· establish· that he was ·acting in concert v.ith, robbers knowing that a robbery-~ taken pla.oe, · For tho· above reasons, it - would be ~erous to uphold these convictions •. I, -therefore, quash the conviction~ against 6th and 7th accused and 'the scmtenoes· passed. -in consequence to these convictions ~e set aside. The .·two appellants Ramadhani Junia. and· Kassim Ally ·should be released ·from custo(t f'orthwi th unless otherwise law:fu.l.ly ·JuooE '· 25/4/1989. Mr. ~ for Republio ~o appearance. for -Appellants. -