Anthony S/O Madwa and Another vs Republic (HC Criminal Appeal No. 25 of 1977; High Court Criminal Appeal No. 24 of 1978) [1978] TZHC 270 (5 April 1978)

I' t-)/ AT MBEYA L5/1. APPELLATE JI)RI SDICTION HIGH COURT CRIMINAL APPEAL NO.24 OP 197 c/p Gfl.COt)RT CRD'IXNAL APPEAL NO.25 OF 1977 ORIGINAL CRIMINAL CASE NO. 204 OF197 OF THE DISTRICT COURT OF MBEYA DISTRICT AT IEYA BEF0RE T.M.M. KISUGUJILA. ESQ., SUBVISRYMAGIS ANTHONY s/o MADAWA)......................... .rs DAUDI SIO iERU versus THE REPUBLIC ...................•.•...•••••• RESPONDENT CHARGE— Robbery with violence c/s 285 and 286 of the Penal Code. JUDGMENT SAN4TTA, J.: Sosten MwamapasM is a teacher by profession. In May 1977 he was stationed at the Ngunburu primaz- school. He ised to be paid his salaries at Mbeya, On May 28, 1977, he tas at Mbeya. He came to collect his salary for that month. He received thz salary on the same day. if he entertained the belief that he was going enjoy the fruits of his labour, he was gravely mistaken. At about 3.00 p.m. he left on foot for an area of the town called Nzovwe. He had shs.800/= in his liandbag. He must have been a happy man. But the happiness did no last long. WhiSosten reach a ro9 b.aring the name of Jakarnda, two men accosted him frc They had jungle bonnets cn their heads. They accused a thief. But Sosten waE not a thief. 1Je denied the a and tried to argue with the two men. I was useless. slapped him. As theydid so, a third niar.appeared on tJ He was not a rescuer. b. was colleague of the two rn accused Sosten of. being r. thief. Irnmedately thereaft the three men produced hndcuffs. The It gical step fo: Sor.tenZs wrists were sha:tklod. The prodtótion of the 0aused Sosten to believed that his accusei.3 were hounds It was.

• 2 - It was not an unreasonable belief, particularly after one of the three men had declared to him that they were policemen. But that belief was to evaporate from mind some minutes later. What happened? I will tell that in Sostents own word': "Then they he -three menj searched my pockets. Thjfod the money in my hand bag. After taking the money the third man left with the money. I asked the rest to take me to Police station. On the way to the police station another disappeared. I was left with one. He undid me of the handcuffs and I knew thrwere thieves. I struggled with him before he escaped." The fruits of his one month's labour were gone. What was Sosten to do? He decided to report the incident to the agents of law. Immediately he went to the police station and, there, roportod the incident. The three men who had robbed Sosten of his money were strangers to the eyes of Sosten. This created a big problem to the police. But Sosten told them thathe could identify the three mene couraged by this statement, P.C. Nwa.malandull accompanied Sosten around sc-me streets and public places in Nbeya town, with intention of arresting the robbers should Sosten locate them. The two men first went to the main market. None of the robbers was sighted there. They then proceeded to the bus stand. Here, again, the results were the same. From there the two men went to an area called Nahatini. It was a fruitless trip not even a shadow of any of the robbers was sighted by;Sosten there. After these failures many a man would have hoisted a white flag. But not P.C. Mwamalaunduli and Sosten. The latter still hei1eved that his net would still catch the hiding fish. He was riht. As the two men were proceeding to the Sinde Market, Sos -ben saw No men buying bananas. Immediately he identified them as two or the r,en who had robbed kin of his Shs.800/=. He must have beer overwhelmed by excitement. Who w'' not be so affected whet places in 3irnilar circumstances? Soste] pointed out the two ncr. to P.C. Ni:alandufl. Arrests followed immediately. The reco:d of the cidence is silent aa to whethei the police constable hidcufffle two men. It is on record, hc-wever, that he searGi3d them. I aly. two coins of five shiulin were recovered from t x person -of me of them. In the company c Busten, the policeman ihen esc.crtt;d the two men to their house. He searched their roc s. In eaii 'morn he saw a jungle hat, whiol he took into his custsdy as any exhibit. Sos -ben identified the as being identical tc - the one tse robbers had worn on the mater day. With all this -.vidence in their hands, the police charged

•1. two men before the district court of M'oeya with robbery, contrary to sectIon 285 and 286 of the Penal Code. Both men protested their innocence. The two men are the appellants in the case now under consideration. The story of Anthony Madawa, the first appellaht, which Baud Neneru adopted - without any expression of gratitude - as his, was not uninteresting. The story was as follows: "I am a resident of Mbeya Sinde. I am a peasant. At about 10.00 a.m. I was at Couworks on my way from home to tawn when I met one person who stopped me and accused me. of being a thief and took me to the police station. There was told that I was being accused of having handcuffed someno and robbing him of his money. They. . : i: - searched us and found no money. Th ey took us to our hone and they said they wanted handcuffs and a whistle. They looked for handcuffs in vain and they found the whistle. Then I heard them say the caps they found there were those we had put on the robbery day but these caps were not on the list in the search warrant. We were returned to police station. And now we are before this court." The learned trial magistrate, after having analysed the evidence before him, entertained no sane doubt that Sosten was a truthful witness. He realised, however, that the crucial issue before him was whether Sosten could not have mistakenly identified the appellants as two of the robbers. He dealt with that issue and in the upshot he was satisfied that the possibility of mistaken identity was out of question in this case. With respect, I agree. The robbery took place in broad day—light. Over and above that, Sosten was with the robbers for a fairly cons1derable time. He had, therefore, ample opportunity to see the robbe:. While recognising the dander of basing a conviction on the testsony of identification of one witness only, I am satisfied that the conclusion which the learned trial magistrate reached in this caA with regard to the truthfulness of the accusation laid at the apieLnts' doodid not rob the appellants of any justice. Justice.ihd its day in the district court when, on June 24, 1977, 4he appellant wore convicted. The appellants w€e each oonteioedto seven yearsieprisonment. The appel].ant,s may ho ictjus of ign I rance, but the sentence each of them received . is.thl statutory mi:linun for the offonae at robbery. This court cannot QduA even a day f.om such a sentence. If the appellants are iSw fe€aing thd heavy fist of the law, they have only themselves t I biams for haJ ing turned their powers of imagination ....... /4..

a -4- imagirtion and planning to the evil cause of crime. The appeals stand dismissed.

B. A. SJivWPTA J1JDGE Delivered in Court this 5th day of April, 1978, in the presence of Mr. NWANYIKA., counsel for the Republic. .------- - -. B.A, SINATTA JUDGE 4 7- 7