Mbwana Gozo and Another vs Republic (High Court Criminal Appeal No. 343 of 1977) [1978] TZHC 283 (11 May 1978)

/ IN THE HIGH COURT OF TANZANIA AT OAR ES SALAAN APELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 343 OF 1977 ORIGINAL CRIMINAL CASE NO.182 OF 1977 (Of the District Court of Oar es Salaam District at Kivukotii) Before M. J. Msakamari Esq., Resident Magistrate 1, MBWANA GOZO ZE' / (Original Accused) Versus THE REPUBLIC .....................................e...e... RESPONDENT (Original Prosecutor) CHARGE: — Robbery with Violence, c/s 285 and 286 of the Penal Code Cap. 16 of the Laws0 J U D G E M E N T MAKAME J. — The appellants were each, sentenced to the statutory minimum jail term of seven years following their conviction for the offence of Robbery.. Their appeal to this court,. which Mr.. Nyangarika on behalf of the Republic resisted,, was prosecuted by Mr.. IIuccadam, learned advocate.. The convictions were based on the evidence of the: alleged victim,. P.W.? ALl SHABANI and that of another person,. P.W..3 RAMADHANI. HASSANI.. P.W.2 was found to be drunkby'a Polie'Offier ,w.i P.c..BAKARI shortly.after the alleged offence and was accordingly advised to go away and return the following morning0 :Whethér or not' he told the truth that he Imbibed only two bottles of beer) the simple unvarnished fact still remains that P.W.1' adjudged him to be in a noticeable state of inebriation.. Also I ask' myself respectfully whether it'is not inherently improbable th'at the takings of one day in the complainant's welding establishment on the SIDO estate at Gerezani could amount to as much as Shs.2,800/=,, Further, even assuming in favour of the complainant that all the alleged money was in.Sh.10C/= currency' notes,,. . . .2/

-2- to tuck all that money in one sock in the right leg would be tio mean feat. Mr. Muccadam has suggested, and I am inclined to agree, that if the c'mplainant's story were true and he really knew, where the second appellant .lied therewould have been evidence of his having led the Police to that appellant's abode. At least on the morrow. I am myself bothered by two other matters: According to P.W.2 the incident occured at about 6.45 p.m., when it was still twilight, but he did not make a report to the Police at Gerezani, in the same neighbourhood,.. until 8,30 p.m. Secondly P.W.3 who said he was with the complainant during the alleged robbery and who sought to corroborate the complainant's story did not say, as did the complainant, that they went to a CCM Office before making a report to the Police. Robbery is a serious offence attracking grave penal consequences. For the charge to stick home, more credible and convincing evidence than was adduced in this 'case was required. With great respect to the learned trial magistrate, it may be true that "The accused persons after all appears (sic) to be persons of no means" but it will be a sorry day when appearance of being a man of straw would be allowed to strenghthen evidence which falls below the standard of proof beyond reasonable doubt. Because of what I have set out I allow this appeal. I quash the convictions and set aside the sentence. .1 order the appellant's, immediate release unless on account of some thing else lawful they have to continue in custody. I desire to add that I am rather surprised that,the learned • trial magistrate made no compensation order despite his finding. (L. M. MAKAME) JUDGE Dar es Salaam: 11th May, 1978