Gabriel Sylivester vs Republic (HC Criminal Appeal No. 332 of 1977) [1978] TZHC 183 (14 April 1978)

IN THE ITTGH COURT OF TANZANIA AT Nrl'l.ANZA ... ::::-:z.-.LL.'.r ~ JTT:cISDI CTI,'.)l; T.:fIGcI ··,'io'rp,m ,-, I. r· - . .. ,- . ...... L_ :v L•. u ..;.:., .. , ...... ,_ .J. - j_ .1.:c •. 332 0:2. 1977 Cf. CRir ✓ .ITNAL APPEAL N0.397 OE' 1977 . ORIGINAL CRIMINAL CASE NO. 72 OF 1977 OF. -THE DIS_:'.rJl]:CT COURT OF SENGEREIJ.A DISTRICT AT SENGER.EJWA Befo're M. S. Kabibij .:;sq. 1 District Magistrate GABRIEL SYLIVESTER . . . . . • . . . . . . . . . . . . . . . . . . . . • . . . . . . APPELL.A.HT versus .: · · THE REPUBLIC • • • • o o_o • ~ • • • • • • • • • o o o o o •. ~ o o o • • • • o •. • • • • RESPON"DENT ·JUDGMENT . MFALILA 2 J. These two appeals were consolidated. The two appellants were charged with and convicted of the offence of robbery.and_ sentenc€d to seven years imprisonment. · The case agains-t· the appellants as narrated by the complainant LUNOZA PETRO (PW.l) who incidentally was the only witness 9 is a little confusing. From what he said it is not clear whether he and the appellants knew each other before this incident. Lunoza said that on 17/5/77 he went to Sengerema trading Centre to sell his rrt.aizee After doing so hG started on bis way home. But before reaching home he stopped as usual at a pombe shop where he found the two appellants and joined them. According to him he bought heavily and they shared all this. pombe with the appellants. The drink.ing continued until 6 p.m. when he decided to leave for home But as he was preparing to do so 9 his erstwhile drinking companions namely the two appellants turned into bandits. They held him tightly and prevented him from leaving until his bicycle was taken away by some members of the crowd at the pombc shop. They then released him and ran away. The coaplainant sa:Ld that the app0llants held him pretending as if they knew him WGll one saying this is my friend~ the other this is IiJY relative. It is not clear when but it would appear that the appollants were arrested by l\lili tiamen aG they were walking about in Sengerema trading Centre. Both a1Jpellants denied the cor.1plainant I s allegations saying that they did not visit the pombe sho:p·nor did they drink with the complainant that day. The trial magistrate while accepting that there was no independent evidence to support the complainant's version 9 he nevertheless found that he had told the truth and convicted the appoilantso I doubt howover whether the magistrate would have arrivod. at the saIJ.o conclusion if he had examined the complainant's evidence a little more closely • .As renarked it is not clear from his evidence v1hother he and the appellants knew each other before this incident. In the first part of his evidence he appears to give this impression for he said "I know those two accuseds here •.•..•.• but on reaching Nyamazugo Road po~i1be shop I decided to stop there for a while to drink ponbc and whilo there I found these two accuseds there drinking and I joined them and vvc started to drink together ••.. ? This then gi vos the ir.1pression that they knew each ether well. But later ho destroys this imprcssicn when he says: "the first accusod Musa Bi3.ltazari then rose up and held me by tho waist pretcmding as if he knows me well .. •••" Cloarly the coL1plainant appeared to bo confused about his relationship to the appellants. . ./2

2 The second considerat.ion against. the complainant's version f is why should two pC6plo with wh01:i he had been drinking so aTiicably suddenly 'turn aga.ins.t hin · so. vicei'ously?, ... : Is there any ovid.once that 'therrc:;_ was a .pre 'p1si1 botw·ecri the appellants and the rest .of, the mob at tho pCL1bc shop to: rob.hiLl of his bicycle? And .why should t-ho v.-hole Doh at the po::nbc shop a.ct against him? I think it nore likely than not that the c cDplainant lost ,his bicycle in 11,.is_ .d:r:unk_on state, for oven tho dates he gave are conflicting. On the vvhclc I ab not happy w_i th the coDplainant' s evidence against the appellants so that I wculct no't' so readily ac·copt it wi'thout its· being supported by ether independent evidence. As .. this-_ was lacking the boncfi t of those lingering dcubts 11ust·gc tc·the appellants. Accordingly these appo~ls are allcwedj the convictions quashed and the sentences of sevon years imprisonment sot aside. Both appellants shculd be released from prison i:mnodiatoly unless they a_re othoryv:i.se· 'lawfully detained. Delivered in Court at Mwanza this 14th day cf Aprilj 1978. M.VANZA J_4th April 2 1978