19980109 TZHC Dar es Salaam

IN THB HIGH COURT OF' TANZANIA AT Dii.R ES SALAhN

APPELLATE JURISDICTION CRIMINAL .A.PPEilL N0.41 OF 1997 (0-8IGINAL CRIHINAL CASE N0.1287 OF 1996 OF THi.: DIS~rRICT COURT OF ILALA DISTRICT AT KISU1'U) BillFORE: KABUTA ESQ, RESIDENT Vi.i'.GISTRA.TE ·roTOO G.80RGE MAGf;T'It\ •• 0 • 0 • • • • ;, • • • • Q • • • • • ' 0 ••• 0 0 0 APPELLANT ,.... VERSUS I .REPUBLIC oocc,ooooo••ctooooooaooooooo•oooeooooooooe RESPONDENT JUDGM·.~NT S!+_PE'.PA ~ J. : The appelli:mt, 'rotor,, George Hagetta, was jointly charged with another \~i th the offence of robbery with violencG contrary to sections 285 and 286 of the Penal Code. Both of them were eonvictcd as charged and each of them was sentenced to fifteen years imprisonment. 'rhe appellant now appeols against both the conviction and sentence. The prosecution's evidence WG.s that on 23rd September, 1996, at . about 7.30 a.mo, the complainant, i,mina d/o Njama (p.1;1.1), was on her way to a bus stand. On the way she met the appellant and his co-ac~used. The appellant suddenly kicked her and she fell down. Thereupon the' ·appellant tore off P. 1;:.1 1 s earrings and in doing so injured her ears~ Meanwhile the .appellant's co-a,::cused snatched P .W .1 1 s handbag and the two culprits took to thdr h(:::els. J 6 ... 2 , P.W.1 raised an alarm, and in responee·to it, a crowd of people who were nearby pursued the fleeing culprits and apprehended the appellant's co-accused while still in possassion of

the complainant's handbag. 1'he appelle,nt ran on ru1d ehtered a nearby house where he hid · himself under a bed. The pursuing crowd .su:crounded the house. D/SSgt Chambuli (P.W.4) arrived at the scene and entered the house where he found the appellant hid1ng under a bed. He ru"rested him and re-arrested the appellant's co-accusE:d who had been severely beaten up by the angry f'rowd. In his defence, the appellant s3id that on the day in question, he was at home. Then he he·ard p0ople shouting outside. So he went outside and saw people beating up his co-accused. When he told those people to stop beahng that man, those. people threatened ·to beat him also, wh:r.eupon the appeJ.lant ran to a nearby house.where he was J.ater arrested. During the hearing of this appeal, Mr. Kifunda., learned counsel for the appella.."lt, submitted that the lea.med trial Magistrate ·did ·not properly evaluate the evid!:-mce but merely summa:r.ized it. Secondly, he submitted that P.tv.1 did not appear to have k...'1own the appellant before the. incident and that what she said in cross-examination must have been an afterthought, a'1d so tha learned trial mngistr . ¾te I s observation that the evidence of P .~"l. 1 had been corroborated was bas0d ·on no evidence be~ause people wno .had surrounded· the hc,us,J did not give eviclance. He added that P.vJ.1 did not detsc~lbe the &.ppella..'1t 1 s

attire. Finally, lea.rned counsel submitted that although earlier the appellant had indicat,;d thc:1t J:ie wanted to call :one witness, the trial court did not afford him .the opportunity to do so 1 which f e.c t, in his submission, prejudiced the appellant; and that his advocate was absent. Miss Chambo, l.earned state attorney for tha ne;:ublic/Respondent, submitted that the evidence of P o\ri •.1 had bc~m corroborQted as observed by tha learned trial magistrate; that there ,-ms no reason for a description of the culprit's attire because th~ appella."1t was arrested ·almost imrnediatel~r ' after the incident; and that P.W.1 knew the appellant ·beforeo With regard to the intended defence witness: sli.e submitted that section: 231 (4) qf the Cr::.r.1inal Proc,:ldure Act, 1985 could be brought in aid to resolve th:.:i.t issue. On -my own view of the evidence, I am far from being persuad~d the..t the evidence of P .VJ .1 as to the iden:ti ty of tha culprits was assailable, f''~~'J positively stated 7 when asked, that she knew the appel],a.rit b;;1fore the day of the incident, and the incident occur:·ed in broad daylighte Besides, the evidence of Po\·J.~ was cor;:·oborated by the evidence of P.\•L3 and the appJll.mt' s cautioned ,statement which amounted to a. confession. In the circurr.stances, thercfo:::-e? J.ack of description of the culprit 1 s attire was of no c·o:1sequcnce ~

particularly as he. 1-.ras r.rrested almost immediately after the incident.- In my vie.1:1, therefore,. the appella.'1t ts story in his defence was no r,1ore than a.'1 afterthought. Ori the question of the absence of· the appellant 1 s 1:-.:l.vocate 9 ·the reco:-:-d. c-"' ':}y, ➔:rial court reveals that the advocate only appeared to apply for bail. Tl).ereafter h·~ too!.~ no part 9 nor did the appellant 9 who was on bail, te.11 the court that h(: intended to engage an advocate during the t::.~ial. So that complaint at this stage is without basis. I now turn to the appellant's wish to call a.witness. It was certainly .:m omission on "the pe.rt of the learned magistrate not to have reminded the appellant about his earlier wish to call a witness.. v:hat 9 then, are the consequences of such in om:" ,3sion,· Section 231 ( 11-) of the Criminal Procedure Act 1 to which. the learned state attorney referred, gives a discretion to the court to adjourn :;he trial to enable such an intended witness to testify. That discr8tion, however, will only be t)Xercised in favour of an accused person if the court is satisfied not only that the accused. is not to blame . for the absence of the intended wi.trn::sG 1 but a.lso that there is l_~e,}:.i.hood tha-: th1:: intend.cc. uitn:::ss would give materiel evidence on behalf of the accuse do In the pre.sent case, and to start .with, the appellant was

on bail and so could ea.sily have brought his witness on tha day tq which the trial was adjournedo So it was the.appellant's fault or neglecto Secondly, in 4 his cautioned statement, he had said that he was in the company of his co-accused, a fact \·1hich was con~irmed by his co-accused in his cautioned statemento T}1irdly, in his defence, the appellant mentioned no person as havin0 been in nis company. So, even going by the evidence of both sides, there w2.s no lil:';)lili.'.)Od the.t the inte;nded witness would have -given any materic,~. 8n the to-tr.lit~- of the evidence, therefore, I am of the settled view that th~ anpe::1..J.""'0.':;: s conv~ction was richly deserved. With raga.rd to the sentence, it was the statutory minimum. totalityo. ,· _,,. B. D. CHIPETA

JUDGE JuC:g!·2-··n-t:. d.::liver \d: ;_n Caurt at Dar es Salaam in .presence of 0 Mr. Gondwe, State Attorney for Republic this 9th day of January, 1998. I / . I .i }