19760604 TZHC Arusha

IN THE IIIGH COURT OF TANZANIA H7 L

AT ARUSHA ALPELL102 JURISDICTION HIGH COURT CRIIIINAL APPEIL NO 0 347 OF 1974 0/F H/C CRILINAL 1,2PLILL N0248/74 & 303/74 ORIGINAL CRII.aNLL 0L3E NO. 113 OF 1973

OP THL DISTRICT COURT OFTARUSHL DISTRICT AT ARUSHA BEFORE: L. J. L. MWLTILSIIcL, Esqo, Resident Magistrate 1 DAVID JOHN 0 TI1T.! A 1T TC\rDU . - P DD1?TT P Nt1 • C.. LJ..&.J.Li _.La.L.L.L . • . . . • S • S * • • S S • S • • • S .LJJU.LJJ4.h.1. 3 •NDEW.ARIO KtJl'TDAELI . (Original Accused) vC-rsus THEREPUBLIC •. . . . . . . .. . •. . . . . . . . . . . . . . RESPONDENT • . (Original osccutor) .Trrnmnirrm JONLTHAN J. Th-ö .•thrco appellants were convicted joint1y.o • rob1eeiy-wIth violonco, c/as 285 and 286 of the Penal Code, aild given-the ininirnum sentence.- The--undisputed fr,cs show thac, on the relevant mbrning - a ah-oixb nine-- o clock three or four eion driving in a s'çoleii cer arrived at thej5rcnises of Mbuguni/Icarangai Moru Growers Co-oprttivo Society.. No sooner - had thoy got thro than thc stor.ed into the office vbthero, after sub3cc'tingth assistant clerk (p..W.i) and a messenger .uion4g- others, to terror thy took from the safo-,: the s1.n of i.56,429/65 c-ini - all the jnor1or there was. ioy then inadcoff in . that car tak±ng the mohoy "with them The prosecution cal tHat hc opellcnts, in ref oronc to, Whom I will in this judgeeiont - •rotàin thoi respective descriptions in the 1ovçr court, wore the gangsters. For this reliance is placed mainly on the evidence of P.W.1 2 P.7.4 9 P.W.5, P.W.7 and P.W.8. According toP.7,l-and Pal.4, - after three pLoplo caaIe out

of. tnc car two of them burst into th. office while thQ thi±d poron, dressed in an amy (presumably T.P.D.P.) uniform and having a shot gun stood: outside firiaS shots to compel those whb wore around to li dovin. The two nun upon bursting in and finding the witnesses tied them up together, apparently Zof with a pairaandcuffs. They then asked for key to the safe. It transpired. that P.W.1 had one key- to the:b safe and a coairnittoc memoor of that society . cocona key and that to open thefo:.bot. the keys had.to be used. P.W.l upon pressure then gave the key to the man who hod tied thorn up, nano1y, the 1st accused. That key alone ts just stated above vioul not open th.. safe. The gangster who had remained outside having a girn cacao in driving in the secretary of the society. Ho fired a shot at the ceiling, the. purços nc1 affect of which was to have the victims • make the second key available.- The . . . . •. . . . ./2 -2- The corn ñ.ttoe nail was called in to givc the kcy to the robbers. In the mcantiiac all the victicis inside the, office had bcen ordered to lie down.: The safe was opened. and P.W.l on the order of th e first accused assisted using one hand to put the :Ioney in a 'bank bag that lay handy. The two mon after searching P.W.l and P.W.4 for any money they might have had they undid the hn.ndcufis and walked,, o with the bag containing the money. They locl:od the

.00'±" b'ohind thorn before disappcaing in the car. . P.W.l soid ho rocogniod only the firstccusod, although ho 'had never coon him previously, this because ho. was the one who had tied them up and who later undid the handcuffs. Th 'wtncs's uld. appear, to have 1wn the 3±d accusoci. but he seems to havo been cloar that ho. did not soc him thcr. aid that, had he boen one of the robbers 'ho would most probably. have coon him. As for the 2nd accused he said he \toula nrn knor f r as th on. iho merod the office with the 1st accused bocuse, as he said, he was not that near and ho was hims elf looking down as ordered by the robbers. PJ.4 9 like. P.Wl, recognised only the first accused. He had been looking', dowli, 'he oe.id, but hc..rocognisod, him at the time ho was untyiñ' 'the handcuffs • Js to th, clotli...c, the 1st accusd iias wearing the version of this iitiaess is soinoihat different froia that of P.W.l. Ho said tin. accused was wearing a pullover and only the ü,a man had. an army uniform on. P.W.l, on .L. oth.:.r hand, had said the 1st aouusod was wearing a spotted army uniform. • P.W.5'w.s the comaittoc member with one of the fo koys'. He had' been on a 'lorry ousid rin sacks when he saw three people, of whom one lTd.' a rn, 'got into the office. He was coon called into he cfice and, believing that the visitors wor cooperaGive inspectors, he complied. Once he was in the

office, , he said., the gun. ian o'derod him to lie down whjlc another pbrson do. a".ndd th key to tI'o safe which ho duly. gave tho:'i. i'tor tncy , took the money, he added the 2nd c'cused untied the handcufb on P.Wlard P.W.4.. It will be recalled that theso two witnesses said this had boon done by the 1st. accused. The witness did not recognise th gun man, but he clai" .d. to have rcognisd the 1st and: second accusod In one breath he discribod the dross of the 1st accused as a pullover (as P.V7.4 had done)' but in another he said it was an army uniform in the shape . of a coat. nd nov.T'to the accounts of P.W.7 and .P.w.8. They were both working on board that lorry when the violiciat visitors canic. ccording to thnari one of thou, a tall, man, was Wearing an ary uniform and had' a shot Lnui which ho fired and ordoi'cd thorn to liodown. The other two non had in the meantime ontorod th office. The gunman had later driven thc secretary of : tho society '(not a ithoss) and the connn±ttoo man into the office' aid then cons, out fin-mg more shots, t'ho pff Oct of whih was to torroriso P.W.8 inmonsoly, thoroby forcing him to run away. This witness recognised the 3rd accused as' being that gunman, while P.W.7 said ho recognised not only the 3rd aceus:.d but also the other two who ,onterod the office *ad being' the 1st and 2nd accused. As rcgards ........... /3 -3- As rcgxds his

ith.ntification of th 1st and 2nd accusod it would .h haci. aor. opportunity than P.W.8, this because unlike P.W.8 he wals, still on tho lorry v/hen they csmo out. It. would- iurth..r appc:ar, accordinrj' 'to P.W.7, that thorc wore SpCOS lfl ;bOtWCOfl the tiflbor work conprising the tray of thc lorry through which the w'itncssco were able to see what was happOniig' After the police rcivod ruport of the robbery P.W.10 on. the saie day acting on a tip-off searched thc rooms pf the 1st, .and the 2nd accused who wore tenants in tile, sexio hOUSOI r Nothing was found but a short distance fron the roon of the 1st cctd thu vfitnesci' found a piece of cloth buriod in the sand. -.- It contained a u: of sIe.966/, all in silver. At that saac spot ha covere nine rounds of iunition and a pair of handcuff St. two. accusci ioru then arrestod At an ±dciatificatia±i, parade held on the - next day P.W.1 appears to h -v-c• picked out the lot accused as boin one of the robbers.: The' 2nd' accused. a1thoih on that 'par do was not picked by the witness. The 3H accuseclhad - not bc'cn arrested as rot - and was not on that paradc. No.othor viitacs seens o'-1rwc 'bocn. callod upon to assis'i; at that pardo but (,it a parade. hold two days lrttcr P.\'.7 ideitificd all three accused whil •PV1.8 idontific.-on1y the 3rd accused. no'indication if .P.V7.5 n - do any identification but in-the case of .P.W.4 i

1ou1d rppco ha wi.o not called. Both tho,lstand 2nd ctàcusod had a connon dofcncc as tcstificd by the for-..iur and adoptd byth-o latter. They adnittod' the noncy and bullets wore found at the house whore they live. They ho'wevor denied taking port in the robbery.. They said -as regards the first parade that, althongh the eye witnesses wcr present they failed identify thomt At the soond prer4e, hoevor, they had picked on then, this- only because they vj'OrO band:'od and had dirty, blood-stained clothes as the result of having been beaten up and subjocted to dogbitos by- the police with a view to extracting a con±ossioa -fron then. The first accused produced the clothes he had bcon wearing. They would seen to bear out his allegatio,n that they had' been tortured, and 'I would readily think they had bàon-torturod. The first accused when referred to the evidence of P.W.l When he said h_ had identified hin at the first parade he said that was not trao, the truth bing that he had failed to -rIe any identification. ThG 3rd aCCUs.d in his evidence put up an alibi in that a coupld' of days previously to the incident he had boon to the Govc-rnnont hospital whore a doctor gave hira an .D. (excused duty) -exc,psing hie fron duty for thro- days because he was sick- -- On the relevant day, hurcforc-, he could -not have been at the' place wnere- the offence was ce:nited, especially as- he Ws

r..quircd c c 11 on th .octor onco on each of the two followin coys. ]h had duly ha n bo sac the doctor on hc orün of the iTt6idont, althouh ho could not be clear as to. tb.o. tine-. - Ho was pickd up by -the police- as ho was rcturning, fron aij extra visit he had nado to the- hospital. He added ......... /4 -1. .1 A Ho nddcd that ho was himself a aiativo of the area of bi..igi..uii. whore the incident occurred, and ho duly argued that if ho had been one of the robbers the various oyo—witnossos woulci have recognised him as they lmow him. Ho called two witnesses. His iaother was one of thou. She testified that the hacie of her son was near the Cooperative Society. She also said that sh had. come to tovm on the relevant day to visit her son only to find him sick and having gone to hospital k'.. Sohasuica (D.W.2) testified ho had in fact attended' to th 3rd accused and givon him sick leave.. Ha had also attended him on th two following days. Ho would however ndt' roeiorThor what time of the day ho had attended The evidence respecting the 3rd accused is of some difficulty. P.\V.7 and PGW.8 soon cibar they recognised him. They also appear to havo had sufficont opportunity to watch without thensolves being soon to do so. ainst this however there is the evidence of P.W.l who said that ho did not see him in the group and that had h boon one of thou ho would have rcconisod him,

apparently because the hocused is n Give of hm rrc and the wii o Wes fanilior with his appearance • Mention of this is evade in the. judgonont but the learned. rsidcnt nagistrate do;s not appear to have indicated how nuci.vioight, if at all, hb was giving it.. This aspect, with respect., 000rvod careful considoratibn.. The . gunnaa had moved, up and down harassing the cooperativo officials for a cansidorable period and in my view of the three he should have been the most conspicuous. It is a little puzzling, tberefore, that ho should. have boon recognised by two witnesses only, one of vthon I nay say was too foar—strickön to be clear about the idonti'y of that person. More importantly not only would the other witn.,.;sscs # especially P.W.l, have recognised him as a can originating from that, aren. if b. had been onç• of' the gangsters, but it is also hard to say that the accused while fully )mowingz that the cooperative officials woul. easily recognize hieI as a native of tht area he could nevertheless have exposed himself to that extant • His alibi should accordingly be viewed against such hack—ground. Such alibi does not exclude th possibility of the 'appellant having been at th_ scene' o± creao at the relevant mc but having regard to th. circumstances as a wh:16 in my view it raises reasonable doubt that ho nay net have taken part in the robbery and I think it is not

irrelevant to note in addition that it is not shova what led to his being arrested. !ccordingly, his apneal is aflowed. The. evidence in regard to the other accused may be considered tpgethor. Both PJI.l and P.W.4 sccm to .havc recognizd only the first accused, but P.W.5, and P.W.7:say.: they recognized both accused. The first two witnesses say the 1st accused was the one who both tied and untied thcn, although P.W.5 said the, undoing of the bnndcuffs was by the' 2nd accusd. It would soon to :no that P.W.l and P.W.4 vvcro in C. position to ace clearly at least die of the robbers both at trio time he burst in and t the tine of removing the handcuffs. P.W.1 hail the further opportunity of assisting that man in packing' th'.. money in a bat1Lbag. Thore........./5 _5_-•; - 4 There was light in the ôffiOc and ovorafl, there would appear to have boon considerable opportunity for the two witnesses to be clear about the identity of that poron. As for P.W-.5: ho was driven into he office to handovor the key. That should have afforded hin sufficient opportunity to see the two robbers. P.W.7 was probably the boot placed of thou in-as-nuchas ho.sayod put on the lorry ithroughout, from where he could watch wit little risk of being detected. There is reason to boliov therefore, thob; he should have boon able- to recognise the poop1: if only at the tine they cone out with the loot. Apart fra.

this evidence of identification, a large quatity of silver coins woro found hidden not far fron the roons of the accused personS. The cooperative society had got the :aonoy fron the bank in order to nake paynonts to norebors for the produce they sold' to the society end it nay be supposed that part of such raoncy would nornally have boon in silver coins in odor to facilitate paynont. In those circuastances and considoring that a pair of handcuffs and rounds of aenunition weroLlso found there, there was an irresistible inference that the silver coins wore part of the loot and that the handcuffs and bullets wore those used by the robbers in the engagement. In view 0±' such evidence it would soon clear the witnesses wore not nietakon when they picked on the two accused as being araong the gangsters. The accused nay have boon tortured and had bandages on thou at the second identification parad, but it is to be noted that., at the first identification parade when P.W.l picked the 1st accused the alleged tortiu'c hen not occurred as yet. At the second parade only P.W.7 and P.V.8 worc cailod. The latter picked on the 3rd only who, it nay be recalled, had not boon subjected to any torture 9 and he would not pick on the 1st and 2nd accused even though they had signs of having boon tortured. This can only suggest ho was not being influenced by the fact of such injuries as nay have been

apparent on the accused. P.W.7 on the other hand identified all three accused, notwithstanding that the3rd accused had no injury on hin. This would suggest that in picldng on the culprits he was not being guided by the existence of injuries on any of then. There are also, as already pointed out, soiao contradictions in the prosecution evidence. The learned resident magistrate øoeus to have had regard to thou. He however attributed then to the passage of tine there had been between the incident and the trial with the attendant lapse of nenory. I would respectfully agree, and be that as it nay, the contradictions are not so basie as to render the evidence of the witnesses wro1iab1e. Notwithstanding the contradictions to which the two appellants in their petitions appear to attach considerable weight, and the fact that the appellants appeared to have suffered soiao injuries when P.W.2 identified thou, I on satisfied that their convictions were deserved. In the.........../6 -6--. In the rosu1t th• conviction of th 3rd rtccusod is sot asidc togothor with thc sontonco and it is ordorod ho be ro1osodforthwith. The appeals of the lot acuscd• and 2nd accusid arc howeirr diacnsscd in their entirety. • (p. M. JONJ) JTJIJcTE. Delivered this 4th day of Jimo, 1976. (. I.A. JoNJIT) PIiJ/IITPM. • JUDGE.