19750800 TZHC Mwanza

I 0 IN Thi' HIG-H COURT OF. TANZAIIA AT MWANZA. AI'PILLATE JURI;l.,ICTION High Court Criminal Appeal Fe. 285 of 1974 Ct. Cr. .&ppoai iTO. 315, 463. Original • Crirna1 C.oe No. 243 of 1973 of The District Cou:, . of Musoma DistrIct, at Musoma. Before E.N.K. Ratakangwe, JT,sq;. Resident Maistrate. YOHANA sb 0 YJARURIGU .. .............AITELIANT. WAMBURA " MWITA AND MAGORO SIMAMA. Versu THE RIPULLIC ....................PLESPOFTYNT.. flDGELi\. ANING The three appoflants, with two other pooplewho.were acquitted, were charged and convicted of robbery' with violence and sentenced to ton y:ars •imprisonment They' are 'appealing' a'aint. both conviction and sentence. .Their appeals. are c.on.soli dated. . For the easo of rCfcce, 'I retain in this judgment, the deCc'rition of the acdu edperons as they were described in the lower court. The frc.ts .aro as follow. On 1/10/72, Chomito 'Saguge with two' smi1'1 children, was grazing his 296 heads of cattle in the field.' Later. on during the clay two"riiorc-. mature youths come to h'lp him;. At about5.00 p.m. a 'group of,O.bout seventy to hndrod Ngurm'd:came,'including th.O' - hird,.fifth and eighth accue person. All the tc"cused per -sons .wor armed 'oitho'r with arrows, clubs and st.ick'. 'Then the fifth (5) accusc.d strud k him with club and he (P.w.i) raised an alarm. P.W'.l and.: his. son wore 1.':et and then the Ngar mes drove the 'cattle -; 'The 'following mornd he s nt his two sons. Joseph and Michael to 'report tho incident to the policO at Mu.gumu police' sation. . In January, 197.3' while searching for his cattle, the eons of the 2.W.1 iolund:one cattle at the eighth accused's home but no cattle were found at the ho:: of the fifth aCcused.. The third and fifth accused parsOns were arrested the same clay and put. in custody.... Thceviclenco::'of F.W.J. was suported by the evidence, of P.11.2 ttn01'P.W.5,. .thoügh..their evidence was con'tradictory. I.will revert to those contradictio: later in this judgmorft. At the trial the thixd 'accused denied being, at the,.'scene of the alleged rol:bery. He called D.11.2 who. supported his story th he had boueht the single head of battle found and ident'ified by the relatives of PW.l as beldnging to P.11.1 'from the firt acc Moieovr-, the fifta accusOd, who chOse to give evidence, on oath dting his ria1I.stated. 'that he was arrested by th.e .polipe at hi home on 2311/73 ne that no cattle wre found in his posscssio' He further teJ thE't ho di" not know P .l since ho hod nvoi ecn him before . 23/1/73." • ' . - , The Qighth accuod during e trial. .stotcd that on 26/3/73, hc woJc up in the Lorning end vent fishing and he returiec' hore at 17.00 hours, irhon he returho his wife told him tht all the cattle at his"homC had bee' ieied by Nycbwike aici.'. the others w cathe' and' t6ok the cattle to the holding ground at Kiagata..Pximoa - Court • When he went to the Primary Court to make j1res aboi:L. . ./2. - • .• ' -' t' j% -2- the cattle seized from his' hon.e, he was a±retcd and put in cus His evidence was sup'-ortod by the evidence of D.14.3 his older bro'i and D.W.4 his wife. I will deal with the appeals individur.11y starting with the appeal of the third accused who in his memorandum of appeal is complaining that he rs not, procrly ieitified as one' of the people, who robbed P.li.l of his cattle. He also contended that the ch rge against him w' s net pTcvod beyond rCaSOna1)le doubt. The evidence, which connect this accusce. with the offence is th of P.W.l, P.W.2 and P.W.5,.., P.W.l idontifie him since he had known him for long time and 'that on the day of the alleged rohery the third accused -vms with•the group of Ngurime raiders, and he. had an. ar -cow and a panga.. horeover, P.W.l (when crossca .... ninod by the third accused) st ted th t he was taken by the fir;,;t accue'ed to his (third accused's) home, where he found one of hie stolen cattle. gai, . . F.W.2 in his evidence identified the third accused as one.of the ro'bbrs, who rolb,e,d P.W.l on 1110172. He further t.. stifled before the trial court that they found one h:ad of the stolen cattle' in the third accused's home. !'.gain Joseph Itemhe, (P.W.5) testified before th tral i court to the of that he could identify. ths: third 'a:ccused düt of the lErgo group ce the Ngurim...s. The third accused was holding a panga and an arrow in his hands. Noreover, P;5. stated that it was the third accue, who had beaten P..1 with a c1ub. It may be noted th.t P.W.l in his evidence stated that it was the fifth accused, who h,ad hit 1.1±. with a clu. It therefore, appe - rs that the evidciO'e. Of P .W .1 an P.W.5 was inconoistont.. In other words it croatsa doubt as to whether or ñot"th.. third accused was prope1y identified. In ani criminal case, if there i dotht, it should he reOlvcd in the favour of the accused. In this cese the question of identifict is pertiiient because t1Lcre was a large group of eop10 . ao,und Wij.. the accused persons attacked P.W.1. Nnzava's J. quoted. ith approved the csse of 'Lixdoic' Kashaku v H. (1967)'H'CD No. 194 in tlie ó'i' IIoda s/a Mgazi v. R. (1972) HOD. No. 206, .vhere he st - ted:- . "As it w s held in :uaov.ic s/c Kashaku v. H. it is unsafe to support a conviction oii. the here assertion of witnessee that they recogn1seci the iccusO,'thO±e ought to.have bc.n evidence by the : thT0c (3) shoving how they, idóntif.id the appellant. .L descript10 of their attirc end such other vjdnce in support of t,heir tcstithony :.wdüld have been of real help." I cannot spy that, there is eiöone . of such nature in this case as reg .rd'8 thp cc e of the 'third accuEa. In the Oircumstances,' it appcO.rs th' t th third accued was not properly identified as one of 'the people, who robbed 2.1 of his two hundiod and ninety eight (298) heads of cattlO. IvLr. Natemba for the fifth accvsed cemp1inec1 th't the ace w s not properly ii.entifie' sJnce there was C bre Ei.ssertion by P.W.2 and P.1!!.5 tht they had récogn.ised 'the fifth accu.: es one of the robbers He also submiod tht none out of the witnesses mentioned 'the n.'ie' -of tho fifth aOOused as one Of the people, who robbed him. While P.!.l btated that he could recorn the fifth accused boeause 'the fifth'accuOdht.d.hit him with a cub .yet P.W.5 in his evicicce st'ted thç' it was the third accu: who had hit P.W.I. with a club. Noreover P. 1 t.2, while he was -- cross-examined by. the fifth accused stnt. that he' could rocognia'. him becau,'at the scene of the robbery he had . stated. "let, us fight the Kuryas as Tanzania is fighting irith Ug.nda' "yt none of the otheritnesses, that is.P.W.1 and .P.l,5.eemed.•to'have heard'those wOrds being spoken hence' thi'leads to the':ihfercnce that those words were never uttered 'by the fifth accuscd. MoreovOr, the learned trial mcigitrate:' dI not consider the 'rola'ipnship'.exist±ni±i respect of P.W.l, P•2'and P.Wa5. PX ias the. soi of'. P.:J,L and' P. c lled P.W;l his.;unclO. that is t .aare all, related'.'::.'Hence they my all be Biased aiistatho accu,. -per.sons.'. . .• . . , W,_. . -3-- As far as the cihth accused is concerned both P.W.l, P.W.2 and P.W.5 state in their evider cc that he was not seen at the sc.... of the alleged robbery. The only evidence, which scorn to co nce; him with the offence is th t of P.W.3 and F.W.4 P.14.3 testified the effect th' t on 26/3/73, Michael Chacha went to his house to seek his help in trying to trace their lost ca tti, which he h: seen at the eighth accused's home, when he had gone there to dr:i water as well as to light his cigare-t.te. He (F.!.3) further testified tht sixr, a he was not a ten cell leader of the area which the eighth accused person resided,be therefore, took P.. .I to P.W.4 's house, a ten cell loader within the area, where the eighth accused resided. Hence the three of them went to the of the eighth accused, but when they were near hie house, they him driving a head of cattle forcifully towards the hills. therefore raised an alarm and started chasing him. The eighth accused picked one hoad of cattle (khaki coloured) and startc.i' to run away with it, but when he saw that his pursuers were dc in on him, he left the cattle and rn away. Then they seized the cattle and took them to the holding ground at Kiagata Priae Court. The evidence of P. 7--T .3 was suportod by the evidence of P.W.4. His evidence was sirnile.r to the evidence given by P.W.. He too stated that on 26/3/73 they, seized a khaki coloured hof. -, h( ryWlth the complainant 's mark from the house of the eighth accueo. However, the accused cannot be convicted of'Lattle theft becauc: Ie this is not a minor cognate offence with robbery with violence In Lalai v. R. (1971) HOD No. 210 Kwikirna Ag. J. (as he then stated:- not '.... Section 181 of the Criminal Procedure Code reade nd at 1 (1) When a person is charged with an offence ecene consisting of several p:rticulars a combin....... obbery or of some only of which constitutes a cornplotc minor offence, and such combination is prov but the remaining particulars are not provu:.. he may be convicted of the minor offence he was not charged with it. The rational this rule is that the accused will be prejd. ced if in the course of his trial an entirc' new off once is revealed and he is convicted with it:... He will not hre had time to prep ...... hip déiencd.'t.. It is clear tht cattle theft is not a minor and Or cgne offence to robry with violence. Hence since there is no evidence to connect the eighth accused with the offence of ro. with viole-nce the conviction in respect of that offence i and the sentence is set aside. However, the Court caimot subotL tute for the offence of robbery with violence . the offence cd cattle theft since the latter offence is not a minor thid ognae offence to the former offence. In the result the appeals in respect of the third (3) fifth (5) and eighth (C) accused persons are allowed. The convictions are quashed and the sentences are set aside. Noroc, the compensation order is also set aside. I also order that ft accused persons should be forthwith released unless they are otherwise lawfully held in connection with another matter. Delivered in open court at Dar as Salaam this,.....th day of August, 1975. •:/. /L.. L. . O.J. MA1ITTG, JuDE.