Mashauri Manyirizi and Another vs Republic (HC Criminal Appeal No. 99 of 1972) [1973] TZHC 149 (30 March 1973)

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• L- -L...' AT 1IVA1TZA, APFaAT E JURISDICTION 1-1101-I COURT CRI1-. -1111AS AFFEAl iTO. 99 OF 1972 ORIO-INJ1 CRILUNAL CASE DO. 844 OF 1971 OF THE DISTDICT COURT ORD11-TZA DISTRICT AT uRANIA - FEIORE: L.B. UCHOEi ESQ., RESIDETTT LIAOISTRATE. ITA.SHA.TJRI IIAITYIRIZI & ALTOTIiER . . .. ........ . .- ................ , . . AFF11[jLANT (Original Jccusë) Versus: THE131-C . . . . ...... . . . . . . ................. . . ...... . . . . . . RESPONDENT (Original Posecutor) CHARGE-. Robbery with violence c/ss 285,. 286 and 265 of the Penal Code Cap. 16 Vol. I of the Laws. .. . . JUTDGH-JUNT. ]IL-KI1flJY, J. MASI-TAUILI T.-IA1--TYIRIZI , the first appellant , and JOEl s/o BALTAZAR,. the - • second appellant, were convicted of robbery with violence contrary.to . eôtions 285 and 286 of the Pond Code, Cap. 16. Tijo fornor was sentenced td:eimprisonnont for 4 years, and the latter for five years, subject to confir:.'iation by the High Court. They were ordered to suffer the statutory corporal pUniSinloflt -. of 24 strokes each as it was then and each to connensate Petro I-layolwa (i)- a sun of sho. 587/50. They appealed against their coi'vi.ction, sentences and orders. Tno aopcals were consolic 1 stecl ass 1 eard together. Both appel1-rts were present at the nooring of theii. appeals. The respondent Rcpub1c was represented by the loieeC State AttoFnyley hr. Flbilinyi
• Peter LTayolw. (P;.ui), thecoiaplainant, owied a retail shop in the village of Nyinbiti. H sold clothes and food- stuffs. - The shop was in a hôusè which - consisted of two rooms and a verandah.. One room was used a shop, d the -.othr - vies the becTroom The fomer room had two windows and the letter .had--:oe. window. The window fraees were of timber and .he hlades were -of - natal. .Jl±inghe - -night of the 24th and 2th of Ju1,- 1971s the complainant cr6 Kisn.za were tnsleé.p in the bedroom. The doors end windows \iei o pro er1y locked. At about 3 the comalaisant one TJsia were aken by the noise at the window, Something was irnoching at the bedrooh window. The window opened. :The comp1ainantraised his head to see what was the matter. Elect±ic torch light flashed diect1y. at his head and, in photicular, at his eyes. Some one told hi.m, in -iswabil-i, -- tu1ia nwanrciai i.e • be: still citizen. - There was - a lit loip in the rooi. TTThen he raised his head further, he saw that the beam of electric torch 1igh-tv?a coning into the room through- the open window and proceeding- from outsidc.. Tee-. voice further told him that if he wanted to be safe, he should s1eep'.- - : The ciplainant did- not recognise whose voice it was. Another voice told him that he woul6-he shot if hC resisted and, aain torch light Was flashedon - -. his faCe.. The- complainant laid on his bed.. He saw someone enter the bedroom -- - through the open windovi. - That person went stwdght to his bed, and caught - -- - him by his neck, but the complainant did not recognise who it was. The -- - intruder placed - a imeife on his shoulder, and ddmanded to be shown where he - kept his ?ma1i (property), - nd he (the- complainant) replied thht he had bought goods with the Doñey he had. - Another voicO-, -coding from outside the room - - said lot him answer properly', The conlainn-nG aid not recognise the voice of that - person either. - Then -thc -complainant was touc1ed by thC - - barrel of the gnn anc t voice denanced that ee snoulci hell the truth. The complainant' a room matd urver one and told-him to give the donCy or els.e they woild die. The Complain-ant thn noticed that some other people entered the room s through the same open window, and he heard rovement and noise of - - some -ti-iing(s).being moved about in the shop room When his room mate pleaded with hir1 2 the complaiieant pointed out the spot, in the floor, where he - - burned his dash siis. 140/=. A voice- then ordered that the complainant - srold. be hot, and the one w1ao held him by the neck, -fired at the roof as the

oorap1ineait.as asked again vthere he kept his money. He replied that what he told ted was all-the moiey he had I -I-c said that. about 4 people entered the room. He was then covered with a -blanket- and wened- that if he shouted ,,. ..

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-- / 0 2 oi uncovered himaelf, he 'oulcR be ° firahcd'. Than the intrueer bcn to move out. The last person to move was the one who held his neck, and that he did so after he had sot fire to the empty boxes (cartons?) which were in the rooms and that he passed ou -t -.-of the opci window. The boxes were . ablaze. The complainant and Iasnza went out of the house through the sane w±ndow, but when they wore outside someone flashed torch liht at them and they returned into bedroom. They however managed to extinguish the flane by using water, and th?y lept tiJl next nQr,fli.: In the folloviing morning, the caaplaincnt and Kisinza awakened their neighbours and informed then what happendd to then the previous night. The bedroom window - was -seen -in -dgad' sta- e' The roof - of -the- 'bedrora was holed throu.--'The we-e believed to be holes made by gun shots. The couplainalTt proceeded to check the stock of his shop. 1 -le .±'oud the following siopoods missing: - - a pair of -trousers worth sho. 50/=; a jacket worth shs. 125/=; 25 pieces of tetron cloth; - 3 Jundies of 5 pairs of vitenge" of different colours; 4Q pai±'s of, khangaT; -• - khaki pieces of cloths -worth shs. 300/=; dozen Shikiho shirts;

1. dozen vests; -12 pairs of slppars; - a dozen bores of sowing thread, anc cash she. 140/=, These ware some of the items the complainant could remember as missing from his shop premises. host of then wore new and common stock of goods for a retail shoj. They were 'unmarked. The value of the missing goods and cash cone, to ohs,: ..2640/ nd value of goods recovered were about shs. ,400/=. -' - And acting on infomation received, detective corporal Salehe (P3), laqrasa (P14), and he complainant (Pi1), proceeded to the houses ol' hochibva Kaji (PW5) and John SalQh - (P78) on the 1st of Augmst 1971, where some - - - - newclothes were recovered. From the hone of Kaji, the police party was - handed-- over cloth for two pairs of trousers,' two pairs of "viteñge, and - -- one white piece of cloth, collectively tendered in court aâ Exh F. The complainant claiueo tho'i to be part of his stoleji property. And Kai told the police party- that they were the ones he had bought from the appellants. The- dll lead-Qr, Kafarasa, then led the police party to. the house, of Sal,ehe (P78). Salehc handed over one snort sloevod Slukibo ebirt, cloth for making a 'par of trousers, a peir of khanga, ,a vest, and a, blue piece of cloth - - and ,theso were produced-, in court, collectively as exhibit G. -Salehe told , - the police party that these items were sold tohim by the appellants In the presence of Kaji, and the complainant claimed that they werc also part of his - - stolen property. On the way, the party not one Pu10 m/o Shino, who was the second accu9ed at the trial but who was acquiited. Shirao was foUnd with some money which he claimed to be his -property and the trial court gave -him the benefit of dou1t over them. The police corporal asked him to -show his house as it Was believed that the first appellant lived with him. As they WCJJL near the house s at a distance of about 30 paces away, Shimo dbutca that whoever wa in his - house should run away. 17 evertheless, th first ppelle'nt was found in the houce of Shinio. He was wearing an old - jacket, which was tendered in court, t.ogetler with vost and sana1s, as echibit J. Upon searchin b the house, a white short sleeved Shikibo shirt, a white,nowbut dirtened vest, another pair of.sandals and reel of thread, which were collectively tendrd as exhibit K, were recovered. The complainant claimed the recovered property to b6 part of his stolen goods. It was alleged that neit,her the first appellant nor - the Shimo gave any explanation as to how' those goods cape to be in that hpuso or on the person of -the first appellenG. And in supor of his claim, the couolainant niocuced a purchase receipt (]3bth. i). The rocipt showed that similar items had been bought by the complainant in Twe -rza on the 15th of July, 1971. The pice party, which then inclided Kaji and Salehe, proceedec to antare village where, it was eJlogcci, the second appelln' livec. The party arrived at about4 n.m., but waited until 5 n.m. inan they woke up uhe second appellant. It was allegedthau the second appellan. made verbal thrants to kill if the oerson knocking -'t his ooi was a police officor. icverthe1ess, the secor,dappellant opened the door of his house. It Was also alleged that when the second appe)lant wanted to run away, the polic,? officer (P'3) prevented him o and effected his arrest. It appears that notiiin's' found in the house of the -second appellant to cause any - suspicion, but on the basis of the allegations of Kaji and Salehe he was, never- ... .. . .i 3.

'. ... r . - . '--;- - . •-ry', ' •- •- --- . tZ ' . I _L . • : : 1 .• '• . 0 • i . t1e1es, rp.sQ. It wa tho cecñ ppc11t is uarriod to it, thb dugher of bilO iiachibya Kaji (P5). TWoiqoAbs /OTL involved on o o, reccit or othona xid ih obiier oC 1e idetifictioi of th. alleged -stolon goods. Uji and Sciloac au1ecc tt1Et Wck beCoro t'ac pollcL p"rt siec toi.0 rsp.c±1ve 1aousos tciey ot tho twopp liants who were in possession of, a biyc1e on ach uhoro \vDS 'a burc1e, Thoy saiI Iwt they may t1L' ct rnht. S1e1io gava the time as B p.:a 4. ThyaJ-1G;: tic uhe two cppellants o1c tiii 'aat they were Oerain( .jDLUCO± aWf for scile and that. 1thouh they wero suspiciOi the

• • apeiieit assurod t1m that they were not clothes unlawfully obteind, and that they hed bou1at tacc, from. l\usoLic. - hey said that the appal1ais told theal iJf:.The y . fs:1:1: Iiato trouble with ±Iaeai tiacy cn ufrtion their :aiao , and that th e y wOul3 bck thra up Waskedl The tu winessea enquirec ii th& two appellt wore ready -td issue than Wjth receipts ithey Oecided,to buy ouë of the clothoop but the appellants told 'then that they wora not doing that they did not see why they siould do Qat for then when everybody cisc had been buying from thoi athô acoipts. Both witnesses were not upeuly vcrried about this because i4thdOthon pctice, in the village, to buy piaco of(oos without being issued with receipts. However, thd witnesses said that they were convinced that it was safe to buy some of the saau clothes because they believed the appeInt and. hause the second appellant was ci son-in-law of Kaji. SaIehe in' particular, said.hat he bought toe said clothes beoause Kaji know 1'3i.s son-in-law. It also appears that the clothes were being sold not only at night time (or was it rarely o conc;c.ent' 2 ) but at cheap prices. And when the poltcc'prty arrived, bu'th witnesses handed over the goods they alleged they had bought from the appeThnts. On the other hand both appellants denied scllinganytlaingto any of the two witnessesi They said that the two witnesses lied against then although they could not give any reason for so doing... The learned 'trial elagistrate was satisfied that Kaji and Salcho were w±tnoOes of truth, and acepto their evidencei He found that the two appollnts sold the suspected eiçeterials to the two witnesses and therefore they.had bcñ.in recent possession of then before they sold,., then to the two witnesse& ic tIea addresed.lais mind to the issue of the identification of t'.roöyred goods. lie .found rightly in my view s that most of the goo'ds recovered oqu,d not be identified satisfactorily because they had no particular raark, but he held that the complainant identified thm jacket, one item in Exh. J y one whch the first appellant was found wecxing The complainant said that he identified this iten bdcaude of (a) long isago, (b) a missing button, and (C) its sireilarily in material and appearance to 'the pair of trousers of like nature. Tho pair Of trousers was an old one, but its belt was produced, and the material of the belt was the sane as that of the jacket. The first appellant claimed that the jacket was his property. I agree with both appellants that most of thumnteials recovered were not identified, but, with respect, I agrcewith the finWng of the learned trial magistrate on the identity of the jacket. There was, in my view s sufficient evidence that the jacket was one of the items stolen dunin the night of the 24th and 25th of July, 1971. Both appellants maintained that the evidence of Kaji and Salehe should not be accepted because they were the ones who were found in possession of suspected materials. I understood this to mean that the appellants wore arguing that Kaji and.Salcho had their own interests to serve in that it was in their interest thai they should shift the blame on to others. I dgree with the appellants on this point. The two witnesses were at least, persons with their own intent to serve s but I have no doubt in my mind that the leaxmed trial magistrate had this point in mind when he was weighing their evidence, otherwise he would not have spent a large part of his judgment analysing their evidenCe Admittedly the two witnesses were suspicious of the transactions, and that was why they asked if the appellants were prepared to issue rOcoipts, but having regard to the fact that the second appellant was the son-in-law of Kaji, they had no cause to think that, due to that roltionsbip, the appellants, or at least the second appellant, can stoop so low so as to involve his own father-in-law in shady transactions. Therefore, the reason they gave for accepting to buy suspIcious the said goods in that mannor appears to be satisfac'tony, After all the appellants aud themi with all that appearance of honesty, that they' could rely on then in aren't of troubles And they, being gullible country folk, did not have reason to doubt 'their sincerely. I see s theeforc no'rcc,son to difThr with the assessment of the evidence of the twp wi'tneCses. And even if I were of contrary opinion, it appears that the version of the two witnesses was mate'ially corroborated on by the finding of the jacket The first appellant was found wearing a stolen jacket. . .. . ... "'..'- .-'...-.-' . - - -. --.'. - -'-. ' __---- ---".'-. -..-----•- ' ...- j . ,.,....

In tho absence of any other explanations, that jacket • howcd tLat th tvo witnesses wore telling th truth, othorvise the first appellant would not have been found with it. Admittedly the second appellant was not found with anything of similar evidential value, but having 2o&crd to the rest. of the evidence of the two ;itnosses (Kaji nnd Salehe.) it is reasonable to hold that the finding of the jac.kct fith. the first appellant equaily corroborated on tIe. case against the second appelIant The robbery took place during thc night of thu 24th and 25th of July, 1971 9 and, caiculatingfron the evidonce the appcllchts wore soon in posession. cf soue of the stolen itefas a week. lator. Th;y were therefore, in rocent possession of robbed property. It was reasonoblo to infer that they were guilty of the charge. I accordingly dismiss those appeals against convictions. The scrrcnces possod on the appellants w re varied beceuse the first appellani was first oifi'idcr hue the second fender had aoveroJ. convictions of offoncos of smular lictures The distinction is quito austi±Ied. The Lrippeals against sentences arc distuaeö, and I conI'irn both se' -itonces. And on the bcis of thO Ovidclico on record, the. prdes for compensation .re well founded on evidence. Eci.ch appullant should coiipensaie the com4nit. in the sun of she. 587/50. The orders for corporal punushnent have been overtaken by eve ets, As a result, those apocals arc dus.nised in toto. Delivered in court, ct Kwanza, on the 30th of 1,1 7 axch, 1973. ITA1TZA (z. tT. i-iaiu) . . : . JtJDGE, ....... 30/3/73. . 4 ..' ,.. - .-, . .... Appdflns - absent. ........ .. :.: ir, ibu1unyi, S -tate Attory for ResponcJcnt t4pglc, --...--.,--.----- ...