19770521 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA

AT DODOMA

APPELLATE JURISDICTION HIGH COURT CRIMiNAL \PPEAL NO0 12 OF 1977 ORIGINAL CRIMINAL CASE NO. 433 OF 1976 OF THE DISTRICT COURT OF KONDOA DI[TRICT AT KONDOA Before M. A. Upaga0 0 - 0 0 0 • District Magistrat SELENANI s/o OMARI 0 0 0 0 0 0 0 0 0 0 0 0 APPELLANT 0 (original Accused) Versus THE REPUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT 0 (Original Prosecutcr' Charge: Robbery c/s 286 and 288 of the P::na]. Code.

JU D G M E N T CHIPETA, J. The appellant, Selemani Oman, was convicted by Kondoa district court of the offence of robbery. c/s 286 of the Penal Code, and was sentenced to seven y. ars imprisonment under the Minimum Sentences Act, 1972. He now appeals. The appellant, however, has since escaped from prison, and his appeal had heard in absentia0 The prosecutions evidence was that on 10th September, 1976 7 at about 3.00 p.m., the appe.lant, who was a total stranger to the complainant, entered the complainantts room where he found the complainant and her young sister. On entering the room the appellant demanded money from the complainant and threatened that he would destroy her if she did not give him money. He then held her hands, and thereupon the complainant's young sister rushed out of the room and went to report to their mother (P.W.2) that there was an intruder in the complainant's room. In the meantime, the complainant herself raised an alarm : but before P.W,2 and other people arrived at the scene, the appellant grabbed shs. 30/-, which the complainant had kept in a bag and put it in his pockets. When P.W,2 and other women arrived at the scene s the appellant disappeared from the scene. He was p however, found in a certain guest house later that evening, n'ìd with the aasistance of a militia man he was apprehended and takni to police station. In his defence the appellant

told the trial court that he had had an affair with the complainant the previous night, and that they had age'eed that he- should visit her house the next day. On the day in question he went to h:r hOUSe at 3.00 p.m. ile there he drunk local liquor and then left. Later while he was in a guest house waiting for the complainant, he was surprised to see a group of people who came for him and apprehended him. -. As correctly submitted by the learned state attorney, this case depended almost entirely on th, credibility of the complai-- nant. The learned district magistrate, who had the advantage of -2- hearing and observing the witness, accepted the complainant's evidence as the truth. On findings of fact based on the credibility of witnesses, an appellate court will not lightly interfere with such findings unless it is satisfied on its own view of the evidnce that the triai judge or magistrate has plain. iy gone wrong. This is as it should be because a trial court has had the advantage of having heard the witnesses and observed their demanour, an advantage not available to an appellat coirt In the words of Lord Shaw, afterwards Lord Dunedin in Clark V. Edinburgh Tramway CO. (1919) S. C. (H.L.) 35: "Witnesses without any conscious bias towards a conclusi may have in their demeanour, in thir manner, in their hesitation, in the rnc ef their expressions and even the turn of an eyelid,

left an impression upon the man who saw and heard them which could never be reproduced in the printed pag.:. What in such circumstances thus psychologically put is the duty of an appellate Court? In my opinion the duty of an appellate court in these circumstances is f or each judge to put to him- self, as I now do in this case, this question; ' Am I, who sit here without these advantages, sometimesbroad an sometimes subtle, which are the' pri.viledges of the judge who heard and tried the case, in a position, not having these priviledges, to come to a clear conclusion that th judge who had them was plainly wrng2 If I cannot be satisfied in my own mind that the judge who had them was plainly wrong, then it eppears to me to be my duty to defer to his judgment". In the instant case, as the incident happ:;nud in broad daylight, th're can be no question of mistaken identity. Coul• the complainant, then, have framed th appellantI do not think SO? While saying that he had had a love affair with the complainant, t appellant admitted that she was a tot1 stranger to him, and added that there was no grudge between him and any of the witnesses If the appellant had gone there at the invitation of the complainant. I cannot see why heshould have been found by P O W.2 quelling with the complainant in her room0 Indeed, if he was an innocent invitee of the complainant, I cannot see why the

complainant's young sister s should have rushed out of the room and gene to report to their mother that there was an intruder in the complainant's room 0 In my considered opinion, therefore, the larnedl magistrate's finding that the complainant was a truthful withess cannot be faulted. Was the offence of robbery committed? I will answer that question in the affirmative0 Not only did . appellant threaten the use of violence, but he actually assaulted the complainant in order to steal the money or retain it. In all the circumstances, therefore. 7 I find that the conviction was well-founded. The sentence, as noted, is the statutory minimum. In the result, the appeal fails and is hereby dismisserL. //• ;'/ /, DODOMA CHthETA 21/5/77 JUDGE Appellant, absent and unrepresented. Mr. Nchora, Counsel for the Republic.