19761012 TZHC Arusha

IN THE HIGH COtTRT OF TMTZANIA AT 'RiJSHA

IPPELLAE JURISDICTION HIG-H 500URT CRL.INLL LPPL NO. 247 OF 1974 ORIGINAL CRIHINAL CASE NO. 55 OF. 1974 5

OF THE DISTRICT COUT OF TJUTGA DISTRICT AT TANGA BEFORE: A. H. T. NYMmO (Miss), Esq., Resident Magistrate. S.t.IDI iINI . . • aaaaaa . • aa . a • aaa • aa • • a • • a • aaa • iPPELINT •(Origiiial 2nd Accused) versus THE REPUTI3LIC . •.., aa•.•• RESPONDENT (Origiiinl Prosocutor) JUDG.'N.T . . MAKAME, J. The appellant SAIDI IIITA and nother person called HASSJI SI IJ1U were each sentenced to i::aprisonniont for seven yoars, substcmtivc.ly,.:following their Qonvictiols for Entoring a .dwolliuig house with intent, Lttptod Robbery, and Being in Unlawful possosson of amnunrb.on. Ui.ina has. aDpcalcd to this Court, challenging the convictions as well as the punishment itd out. P.W..3 JTJHA RSHIDI, a donostic s...rvant rather cicgently referred to: as a housekeeper, was working in the hous.b ofhis. employers, the Shivjis, P.W.7 and P.N.9, when two people entered the house and one of then pointed at P. 1,7.3's stomach what appeared to be a pistol. This was in Tanga Township in the afternoonarouñd 5 p.m. According to P.W.3 thi.. person was thproscnt appellant wno led him into he sitting.room inore thL witness ±ounci reLic her p1son, the appellant's co—accused, who was rostraining,.Mrs. Shi'vji and who cut both P.W.3 and firs. Shivji with a sword. When the alarm was raised and people converged upon the scene in response, the appollant fled. The other accus.:;d s not so lucky end by the

timo . .1 the Police arrived he was lying on the verandah in a sorry state as he had been severely assaulted. The testimony of P.W..5 SkLI11 NJT:JA helped very much to establish the identity of the appellant as one of the people who entered the Shivi homestead and as being also the person who was arniod with what was in fact a toy pistol. According to P.W.5, when the appellant left the scene he wont towards Bombo Hospital after he had threatened him, P.W.6, with the 'pistol". Then members of the public, including school children from Popatlal Secondary School, stoned the appollant P.VI.6 was present as he had joined the crowd in pursuit right up to Bombo and the appellant was still carrying the "weapon" which indeed got deied during the assault, and when Assistant Superintendent I:IGTL, P.W.11, went to the scone he found the appellant not only with the "pistol" but also two bullets, including one which was fako. The appollant was wearing a greenish shirt as was also the person P.W.10 MJI SANJI saw coming down Shivji's house carrying P. pistol. Thorc was,............/2 -2- There was, further, the incriminating shoes. - In defence the appellant said he was in fact out on a rnxiiblc in Raskazono area when he saw soics-onc running and being chased by a group of school chi1dren.Thc: ct'owd said thoappollant was one of ti'ie thieves and tic; was b oat en unconscious Ho d.oiiod being

found with a pistol and also refuted tiio. Prosecution, story about the shoes. -- Tn 1 rad trll L1rts found t1 t bhoro wv's • enough reliable ovidenc.; on vthih to convict and, with • 'cjct, I . cannot say she: erred. The scdiucnco of ovonts and the cirthmstanccs sufficicnly osta1lishcd the idontity of the ap:pollont as one of , tha -intruders 'who terrorisod the Shivjis and their servants. Tnorc arc aaintbedly slight disharmonics in sac oviaoncc bu b.cro are such as would not surprise one and. they do not in ny view detract from the reliability of th: case against the appellant as a whole.. There are not any new matters of substance raised in the apDoal which I accordingly dismiss. I wish to rL,rk t- the Chre Shoot could hova boon drawn wit.lcss. inproc.ioion and that the Po1ico photographer could.have made it more. economical usc; of his niatorials. !rusha: October 12, 1976. ,(.L. M. CTUDGE... . Judcinccit d liv. r .d in open Coui b at Arneho on uhe 28th dny of.January, 197 . .•,.•. / / . UnT/NTHT.