Karim Molo vs Republic (HC Criminal Appeal No. 27 OF 1978) [1978] TZHC 56 (4 April 1978)

• ': IN THE HIGH COURT OF TANZANIA ATMBEYA APELWTL JURIS:DICTION HIGH COURT CRIMINAL APPEAL NO. 27 OF 1978 (c/f Criminal Appeal No. 41 of 1978 ) (Original Criminal Case No. 106 of 1977 - of the District court of Mbeya District at iTheya) BFOi F. A. FUSSI, ESQ. , DISTRICT NGISThATE E.ARIM MOLO .. . . , . , . . . . , . . . . PPLILANT (ORIGINAL ACCUSED) Versus THEREPUBLIC ........, ,. .. .. ., .. RESPONDENT (Original Prosecutor) CHARGE: Robbery with violence c/s 285 and 286 of the Penal Code'Cap. 16 Vol.1 of the Laws. IV JUDG1iT IJiUCIBLTE, J., - The two appellants - KAJiIM MOLO and PANCRAS iDU and another who is at large were charged with and convicted of robbery with violence c/ss 285 and 286 P.C. Each one of them was sentenced under the Minimun' Sentences Act to the prescribed minimum of 7 years imprisonment., Their appeals are consolidated. The particulars of the offence alleged that t The persons on or about the 31st day of March, 1977 at about 01.30 hours at Continental Bar within the Township, District and Region of Nbey, did jointly and together steal csh shs. 757= and a jerry can containing 65 litres of petroll all valued at shs. 240/50, from RANADHA1II S/O OMRI and at or immediately before the time of such stealing, used personal violence to the said ?u\•LDHiUI s/o 011ifli in order to obtain or retain thi said property.' After studying the record and hearing Messers TUKUNJO3A for lot appellant and MWANYIKLi for the Republic including the sub- missions of the 2nd appellant who argued the appeal personally - I am satisfied the case agaiist the appellants was not proved beyond reasonable doubts. To start with no reliable evidence was led to establish the offence of stealing. Whereas the particulars of the offence alleged that the appellants stole shs. 75/= and a jerry can containing 65 litres of petrol from one RLMADHIiBI OMt)I, the said victim - RANtLDHANI OM:RI - who g1re evidence as P1I.1 made no mention at all of the alleged articles having been stolen from him. PW.2 mentioned that he saw two people one of whom was an Asian - scanning a m/v whose driver was PWl. He allegedly saw an African taking a jerry can from the motor vehicle and that when he shouted 'ACHA KUIBA' meaning 'stop stealing' the African started running There is no mention that the alleged L3lan took to his heels alsoo For if he didn' t could it 10 reasonably said that the two went to the rn/v with a common intentipn? In any event, on the evidence, the identities of the two persons is a matter of speculation. From the evidence of another prosucu;ion witness, ETflN NJ NDIiNGALA (PW.5) - a watchraau around the prenises six bandits who included an Asian - were scien at the rn/v in 0ust,on • ,.

-2- Accordin; to the witne.s, he saw the bandits force the driver out of the rn/v and assault him He also saw theei fire their guns. He however stated clearly that he was unable to identify any of them although he saw theni carry a Iparcol. It is not clear whether the alleged parcel was taken from the rn/v. If PW,2 and 5 told the truth then to 'me it scorns clear that two groups of reople - referred to 'as bandits - visited the scone at different times. On the evidence, one of the two gangs was armed with dangerous weapons to wit guns and assaulted the driver - causing him to suffer injuries - while the other was un—armed and simply took away a jerry can. No robbery can be said to have been committed it either case. For in one case only violence was used while in the other only stealing was mentioned. There was no evidence to suggest that the gangsters in both cases belonged to one and the same gang of bandits. There was evidence of an isian gangster allegedly wearing a long coat during the material night. ind a similar coat found in possession of 2nd appellant was allegedly the one the isian gangster was wearing. On the cvidcne it is the isian in the gang of two who was seen wearing a long coat. The witness did not however explain how he was able to identify the coat by colour, etc., without being able to identify the face of any of the bandits I find it difficult in the circumstances to believe that Fñ,2 had positively identified the alleged coat during the material night to be able to describe it distinctly in court as ho purported to do - without - •cinoone having shown to him the one seized from 2nd auellaht, before giving his detailed description in court. There was n•.- evidence to show that the guns and the bayonet seized from 2nd LIollant were weapons used in the assault of Of course, the tar ements of the appellants on the nit of 31,1,77 appear susp5,, ut more suspicion, h0wevUr grave, wc;uld not suffice in a •dmnal case to around a conviction. First au ellant inay indeed have stated tht he was in company. of 2nd appelJ,ant on the material night; he 'iay also have led tie Police to th ,ouse of 2nd appellant; yet that alone or considered with the ot'y facts as revealed in the evidence before the court would not be sufficient to ground a conviciticn of either stealing or robbery cr c'ay other offence connected with the incident at Continental the subject of the charge. In all hI circumstances, therefore, and as already indicated, the case of prosecution was not proved beyond all reasonable doubt. The appeli to be given the benefit of doubt. Both the conviction F . el ntence in respect of each of the two appellants are quashes and each of the appellants is to be released forthwith from Fris ifles otherwise held for eone other lawful order. Deli ored 'n Court at i'Thoya this '4th day of April l 197 8 .' \ (H. J. IP1ii, .iBTE) J U D G E 4th April, 197 8 =,i'i HIGH COtT.' T