19781123 TZHC Dodoma1

• IN THE HIGH COURT OF TANZANIA • AP DuD MA

APPELLATE JURISDICTION CRIMINAL APPEAL NO. 90 OF 1978 • •,(RIGINAL CIMINAL tASE. O. 325 OF 1977) OF THE DISTRICT C:URT OF SINGIDA) SAIDI s/o MWANTANDU.. .• .•. •. . • • . Appellant (Original Accued) Versus THE REPUBLIC. . . . . . • . . . Respondent (Original prosecutor) charge: Robbery with violence c/ss 285 and 286 of the Penal Cod.-,

JU D G M E MT CHIPETA, J. Theappellant, Saidi L&sso Mwantandu, was charged with and convicted of the offende° of robbery with vi1nce c/ss 285 and 286 of the Penal Code, and was sentenced to seven years'iinprisonment under the Minimum Sentences Act, 1972. He now appeals against both the conviction and seitene. The prosecution's evidence was that on or about 26th Octeber 1977 1, the complainanant, one Zena. d/o AmaSi (P.W01) was strendd. in singida t.Qwnship on hr way to Moshi. In the cos of looking for transport to take her to Moshi, she rt .ap t who introduced himself to her and told her that he too was proceeding to Moshi. It was then at about 3.00 p.mc. The appellant then told her that there would he a bus going to Moshi that evening and the two then agreed to travel by that bus. Later in the evening the appellant returned and told h.r that the bus which was supposed to leave for Moshi that evening ies out of order, and so there was no hope of leaving that. evening. He then sucjgusted to her thrE they should go end spend the night at his brother's house at Mwenge and leave for Noshi the following day. The unsuspecting domplainant accpted the generous offer, and so she accolTpanied the appellant towards Mweng,eo 1 . On their way in some bushy cassava shambe, thp appellant offered to carry the complainant's When the .cpmplain..mt refused to part with her lug age, th pp -il

..int snatched it from her, threw it down, ruaed for the ompli.axit's neck and tried to .12 -2- t o £011 her to the ground. He could not, hwevor, succeed in foiling her to the rcur1. He then started caressing her breasts with one hand as h pulled up he complainant's. clothes with the oth\r. As he did so, h suqgested.to her that ho should have sexual intorcouse with her. The complainant, however, declined,, saying., that.. ..as suffering from .a serious venereal disoase Thereupon, the appellant pulled out a pouch from the complainant's breasts and.. walkad aay with it saying that she could go her way a ho" had accomplished his mission. In the pouch was shs. 257/25. .. . The complainant then proceeded to Mwen9e whore she met someone who took her to a ten—cell 1.ader (P.W02). The complainant told P0W.2 what had.bfa1l her, and sh€ spent the night at P.W2's house. Next morning, and as chance would have it, the app..1lant want to house to drink pone. As soon as the comp1ain::nt saw the appellant, she pounced on him and raiseq . alarm saying that the appeil 'nt.'wa,s the man hc stole hr rnontya P.W.2 and maxy oth r p opic apprh.nd d the appllint and intrrugat d th I4 Th.ap.'llt admitted haying stolen the complaInant's money, and added that" he had spent all of it. He was then taken to police station. In his defence, the. appellant denied having stolen the money and further denied

having ever met the complainant. The learned trial 'resident magistrate accepted the prosecution1 s.ëvidence and rjected the appellant's bare denial. He accordingly found as a fact that it was the, appellnt who stole the complainant's money and so convicted him as charged. Having c rc fully p rus d and cunsid red th vid_nce, I am in no doubt at all that the appellant was the person who stole th... complainant's money. ?.W,l had sen the appellent in broad daylight, and the two were together for sometime before the theft occurred. BidS, PW.1 Id :ntified the appellant hardly a day later. Then...th:re wes th appellants own 'admission before several people including P.W.2, P.W.3 and P.W.4. I The only question left for eonsidoration is wheth•:r the evidence estab1ish-.d the offence of L'obbery. It S ems to me that the violence, if any inflicted an the person of the comp1ein:ni was purely £ or the purpose of ovrpow ring tde complainant with a view to knowing her carnally0 The ':aking of the money was not nccompanid by any violence, and laft :r the taking the app.Jlant used no viol 'nce nor did he threaten the use of -any violence. He just walked away confidently as h-. told hr to go away. Such viclencz as th-.rc might have b ei therefore, cannot be said to have had any con.n ctiori,1.t alone a rational connection ) with the taking of the complain:ant pouch0 The off nce

committed, therefore., was n-t robbery but that of stealing from the person of anoth r. For these r- asons, the conviction for robbery is hereby quashed, and substituted threfor i a conviction for stealing from the person of another c/ss 269o.) and 265 of the Penal Code. Consequently., th s ntence of Seven e,ars imprisonment is hereby set aside. The appellant is now serde-ncad to thr e (3) y -ars impriscnment., The order as to compee sation, however, is upheld. To the extent indicated h.-:ein, the appeal succeeds, but it is otherwise dismissed. DCDOMA B D CHIPET:, 23rd November, 1978 JUdGE - ft