Mtwenje Makanye vs Republic (High Court Criminal Appeal No. 268 of 1977) [1978] TZHC 187 (19 April 1978)

o~/ \•.V:ot<' : ·t AT 11i'"iANZil IN TH.C: HIGH COUB.T O:F'. TANZANIA I <J \ { ilPPELLATE JURISDICTION /1\J' ' HIGH COlfrlT CHTiilIN.AL APPEAL NOo 268 OF 1977.• \ (Origi;nal Criminal CasEl-:Ifo.,. 57 of 1977 of the. District Court ;of, lvlusoma District at Iilusome -- B8-fore L.AL.r,tgonja, Esq., Di-strict I~~g-istrate.) ' MTlvENGE hAKANYE •••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT . . ' ~ . .) . ,.._ Versus THE REPUBLIC ••••• • •••• , •••••••••••••••••••••••• , ••••. •~ •••• ;· . .-;;'oRESPONDENT JUDGI11ENT I,1F11LILA 1 J •: The appellant ·,ms the second accused in the trial court where he was jointly charged with inothor person who did not appeal with the ffence of robbery with violence contr2rj to section 285 of the Penl C0de. Both of them were fouml gu-ilty-·-and ccnyicted as chargedo .. Tlley .. wer-e. sentenced to seven years imprisonment each. The appellant appeeled, the 1st accused did not. The major contention throughout the trial has been tho ic.lentity of the appellant for the ttcick on the complainant took pl2ce 2t night, after 8 p.m. and the assault itself prior to the robbery appears to hnve been so vicious that the complainant was left for dead. He was picked from the scene naked ::nd unconscious the following Jay. The complainE.nt told the trial court tl1at cl.uring the evening of the duy in qUiJstion he arrived ot the home rJf the 1st accused who is his brother in la1r1. ilt the time he had with him Shs-450/ .... .As they sat talking w:::iting for the evening meal, the complainant took out Shs.50/= and gave it to the 1st accused with a request tc pass it to his mother, who would buy clothes for his children. The lat accused accepted this money and wont out. Ho came back with the appell.:rnt who diu. net enter tho house but merely greeted them c1nd went nway. Soc.,n 2fterwaru.s the complairnrnt s2id he left and started going to Kilombn's home. He said that he had gone about 100 paces when the 1st accused i.e. 1is brother in law r::nd the "ppelh:nt came moving towards him. On reaching him, they sid that they h1u lost their pombe and asked him whether ho hcod ·it. He deni0d ari.y suc.h thine, thereupon they fell on him and assnulteJ. him so severely that ho foll down unconscious. When he reg2,ined ccnsciousnoss he wc1s in hospitc:l but corti.'\inly without his Shs400/=~ Fro somo reason, initially five suspects were orrested and charged, but lter only the present appellnt and the 1st 2ccused were prosecuted. The appellant denied the charge stating tht he was nowhere ndor the sc8ne cf crime, 8nd ha product.:d n witnss who backc:d his story. As to the iddntification cf thG 2ppellJ.nt~ this must ba beth t the hma f the 1st accuseJ 3nd r-,t tha sc0n<:l cf crime. With r_,3g3rd to th,J enccuntar nt the 1st ncc_used's homr:::, E:11 th.:t the ccmpL,:inr.:int sJ.id w:.s th,.,t he recognised thd a1>pell· 0 nt b-.:3c2usu hu gret;.,d him. It is not ch,:r whether, he identifiud him b0c::u:3'-" lh; sw him Gfter b0ing grc:-::;tad or hu id0ntified him by vcice only sit was dark at thu time. As to the iduntificaiion at the scene, the complninnt did not soy wht the □ ppC:Jllnt cctlly snid which onablod him to identify him by his vciceo 1!11 tho c0mpbinant said was that both his attakcers complined that they h)d lost thoir pombe was this then said simultneously? The le2rned St.:-,to iltt6rnoy whc 1rguod this appeal submitt0d th'1t there w:is no ro.::ison why the compb.innnt shc,uld h;:;ve told lie:s C!gainst the appell-::nt.. I agree, but whore :1s hore the guilt r:,f tho nccuscd depends on identificntion, then the compl2.in1nt must s;,,y in clccir t8rms the b-"lsis of his idontific"l.tion, this sh,.,uld nr-t be loft to vngue references such qs was the cse hcrq - the complainant merely roforing try the appclbnt ns if the wholo episode t0ok phce in d:iy light. The ch::1rge being so serious, the trial magistr3te should net have adopted such a low standard of .proo!• ~- •.•. • .. •. •. •.• /2. 'i ¼ J ,;

2 .. For thee rtqns.this apeRl succeeds~ The cciniction is quashed and '·the ·sent::mce c,f seven yo::irs. set nsid(;). The ,~ppelbnt J/Itwenge M,,kcdnye is to be released fr,,m ·prison fr.:,r .hwith uniess he Li ,:,th0rwise bwfull;y d.etn ined.; · · _Delivered in c:.:urt r-t Iviw:rnza this 19th d;::!y cf lipril, 1978 • . ·MtiilNZil · 19TH :APRIL, 1978 I