19771200 TZHC Dodoma

•1

IN THE HIGH COURT OF TANZANIA

AT DODOMA r- APiELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 104 OF 1977 ORIGINAL CRIMINAL CASE NO0 572 OF 1976

OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA Before C.U.S. Mwailunga0 0 0 0 0 0 .Resident Magistrate YOIIANA SIO JACOB. 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0Ap1)ellaflt 0 (Original Accused) Versus THE REPUBLIC O 0 0 0 0 0 0 0 0 0 0 0 Respondent (Original Prosecutor) Chrje: 1st Count: Robbery with violence c/s 285 and 286 of the Penal Code. 2nd Count: Malicious damaqe to Property, c/s 326(1) of the Penal Code0

JU D G M E N T "LL Before Singida District Court the appellant, Yohana Jacob, was charged with and convicted of the offences of robbery vioLnce and malicious damage to property c/ss 285 and 286, and 265 of the Penal Code0 Ha was sentenced to seven years' imprisonment for the offence of robbery with violence and to twelve months imprisonment for that of malicious damage to prop..rty, which sentences were ordered to run concurrently. He now ap)3als. The prosecution!s evidence, which the trial court - accepted, was that at about 6,30 p.m0 on 15th December, 1976, th comeloinant, Mariam Salehe (L.w,l) was on duty as a bar attendant at Mawenzi Bar in Singida township0 Sittin(j at one of the tabls were two customtrs, one of whom was one Bakari Au (P0Wd.), The appellant entered the bar and grabbed a bottle of beer from the table at which P.W,8 and his colleague were sitting 0 - The appellant then left the bar with the bottle of ber. After some time the appellant returned to the her. This time he took three bottles of beer from a bar crate which was under the charge of Mariam. Mariam then asked the appellant to pay for the hoer. The appellant, however, refused to pay for the b er and started walking out with the three bottles of Mariari followed him with a view to recov-.ring the three bottles of b .r or get payment for them0 The appellant, however, told her not to follow him or else he

would harm her. Immediately threaftr he seized her by the neck and said he was going to harm h r. Mariam and the appellant then grappled for some time, and pcple intervened and separated them0 Nariam then rang up the police, but by the time the police arrived, the appellant had left the scene with the three bottles of beer. Mariam and some four police officers followed the appellant and a;:rested him. They than carried him into a motor vehicle, - 4( -2- Some four police officers sat with the appellant in the back cf the vehicle while infront was the driver alone0 As the motor vehicle started off for the police station the appellant: quickly passed his hand or hands through the windOW behind th- driv:r's seat and violently pulled the gear l.vor which, as a result, snapped and the vehicle stopped The appeicant jumped out of the vehicle and started running away. He was, however, pursued by the police officers and re-arrested0 In his defence the appellant told the trial court that he did go to the bar in quosticn but that he did not take the thr:o bottles of b-r. He charged that the r three b0tt13a of beer were planted on him by Nariam and the police officers. After carefully evaluating the evidence, the learned resie2nt magistrate was satisfied and found as a fact that the npecl1nt took away the three bottles of hoer, that he refused to pay for them, and that when MarL-am tried to

recover them from him he not only threatened violence but actually used violence on the pers. n of MarLam in order to retain the bottles of beer. The learned magistrate also found as a fact that the appellant deliber- ately and violently pulled the gear lever and so broke it. He accordingly convicted the appellant as charged. As was appreciated by the learned magistrate, the case ciepndeJ almost entirely on credibility of witnesses. The learned magistrate haJ the advantage of seeing and hearing the witnesses as they gave evidence, an advantage which is not available to me. On my own view of the evidence, the findings of fact by the l.arned magistrate cannot he faulted. No reason was suqestad by tha appllont, nor does one suggest itself, as to why all the eight prosecution witnesses would wish to frame the appellant. On the facts there can be no doubt that the appellant's taking of the three bottles of boor was without the consent of Mariam, the special owner. The taking, therefore, amounted to Equally, there can be no doubt th .t the threat and use of violence by the apeellant was for the purpose of rotaining the stolen bottles of bear, end so the offence of robbery with viol.nca was constituted. With regard to the second count, the pulling of the gear 1ev- .r was a deliberate act, and the circumstances in which the poelLnt did so and the violence he used in pulling it

clearly show thet he did so with an evil mind, thot is, maliciously. In all the circumstances, th'.:refore, the convictions were jus:ifi d. The sentence in respect of the first count is the statutcrg minimum, and that in respect of the second count is by no means excessive. Both sentences, therefore, will remain undisturbed. On these grounds, this appeal fails and is accordingly dismissed in its entirety. / B.(_CHIPETA

JUDGE Delivered in open court at Dodoma this day of December, 1i'1 7. I B. -- CHIPE A

JUDGE