Gabriel Sylivester vs Republic (HC Criminal Appeal No. 332 of 1977) [1978] TZHC 275 (14 April 1978)

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IN THE HIGH COURT OP TANZANIA • AT IVIIVAATZA — i••:••'• — rn-- JL LDDi iiJ... HIGH .COUT C1 I.I i Ic.. 332 O 1377 Of'. CRINAL APPEAL NO.397 OF 1977 ORIGINAL CRIrNAL CASE NO.72 OP 1977 OF THE DISRICT COURT OF SENGERBMA DISTRICT AT SENGEREMA Bfoe H. S. Kabibi, Esq., District Lagistrate GABRIEL SYLIVESTER ................................. APPELLANT versus THE REI'UBLI c . . . . . .............. o o o . . , ........... RESPO]NDENT J U D G H EN P MFALILA, J. These two apea1s were consolidated. The two appellants were charged with and convicted of the offence of robbery and. sentenced to seven years imprisonment. The case against the appellants as narrated by the comp1ainat LUNOZA PETRO (pw.l) who incidentally was the only witness, 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 maize. After doing so he started on his 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 drinking continued until 6 p.m. when he decided to leave for hone. But as he was preparing to do so, 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 complainant said that the appellants held him pretending as if they knew him well one saying this is my friend, the other this is my relative. It is not clear when but it would appear that the appellants were arrested by Militiamen ao they were walking about in Sengererna trading Centre. Both appellants denied the complainant's allegations saying that they did not visit the pombe shop nor did they drink with the complainant that day. The trial magistrate while accepting that there was no independent evidence to support the conplainant's version, he nevertheless found that he had told the truth and convicted the appellants. I doubt however whether the magistrate would have arrived at the same conclusion if he had examined the complainant's evidence a little more closely. As remarked it is not clear from his evidence whether 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;nbe shop I decided to stop there for a while to drink pombc and while there I found these two accuseds there drinking and I joined them and we started to drink togother....? This then gives the impression that they knew each ether well. But later he destroys this impression when he says: "the first accused Musa Baltazari then rose up and held me by the waist ptending as if he knows me well.....' Clearly the complainant appeared to be confused about his relationship to the appellants. . /2

-2- The second consideration against.the complainant's version is why should two pplo with whom ho had been drinking so amicably suddenly 'ttirn. ainãt him s.o. idibs:ly? ., Is there any evidence that there, was a pro plah btwoi. the appellants and the rest of the nob at the .pcmbo shop tel rob,hin.. of his bicycle? And why shonld the whole uoh at the pombe shop act against him? I think it more likely than not that the corplainant lost his bicycle in his drwkon state, for even the dates ho gave are conflicting. Or the whole 'i ah not happy with the conplainantts evidence against the appellants so that I wcul6 no't so readily ac'cop't' it Withouti'ts" being supported by ether independent evidence. Asthis•was lacking the benefit of these lingering doubts must' gc''to"thc appellants. Accordingly those ap,pels are allowed, the convictins quashod and the sentences of seven years imprisonment set aside. Both appellants should be .eleased from prison immediately unless they are otherwise lawfully detained. Delivered in CQurt at Mwanza this 14th day of April, 1978. M/ANZA L MFALILA' 14th April, 1978 JUDGE