Kefasi Mondya vs Republic (Criminal Appeal No 85 of 2000) [2000] TZHC 377 (14 November 2000)

IN THE HIGH ODTJT OF TANZANIA AT MBEYA CRIMINAL AIPEAL NO 0 85 OF 2000 (Originating from Mbozi Iistri'; uIrrinnal Case No 0 130 of 2000) KHFASIMK0NDYA ... 00000 .0PPELLANT VHS THE J U D G E N J N. T WANBUPA, S.A.N. Pi (j?• The appellant one Kefasi M1ondya Is appealling against the decision of Mbozi DistiQt Court on both conviction and sentence imposed to him after finding him guilty of the offence of attempted robbery c/s 287(2) of the Penal Codea Hehas pointe& out thre grounds being .1. The alleged and exhibited gur u± - been exeined by a finger print expert whose xepört o i èi±J8nce was necessary to clear doubt to whether tie ejeli tEiilly found in actual possession of the said.:g. There was t1 evidence to prove that roli'e fired a shot in the air is crier to dis efect he arrest of the appeflan who was at that time dAp'anHangp money a gun point from PW2. The case was not proved beyond reae - nable doubt so the cdnviction should be quashed sentence set aside ann. he should be set free as the plastic g was not his Mr. Bonifac9 appearing for the Rpubli- biit :ly objected to this saying the appeal has no merit in that the appellant went La the bar, while riding a bicycle and was carrying the said on his bdce anu seiit with it insióe the bar leaving the bicycle outside. After receiving his order 1 the PW2 ernanding8ney at thQ gun point. So he was seen pointing the. gun and i'Wl who entered>,bar just then made a blank shot in the air to enable:him arrest tie anpellant. it Since / was in bright day light and the apellent admitted to have gone to the bar that afternoon the question of mistaken identity does not arises and he prayed. that PW1 & PW2 be found to b. rca .... e witness as faqnd by the lower court. He prsred therefore that the appeal be u.ismisse' and the lower court decisio: be upheld.

Replying to this the appellant prayed ? eiency as far as the sentence is concerned. Nowhaving gone through the court procedures it is not in dispute that the appellant went to the scene of the offence on the f-'--ful day during afternoon hours i.e. on 26/7/O60'at about 1100 pm 1 4 s only disputing that the gun was not in his possession ncx did he point the gun P.t PW2 However, it is in evidence that police where tipped of the in :eJ ic'bery and where on sevallenceo it is also in evidence that the appellant ente:d the said bar with the said plastic which had a gun in it. P 1 ,42 .hat after serving the appeallan who paid him the appellant followed him c t'e coutr oxd a§k6Uhiff toive him money at a gun point. It was then hen PWI intrvened and saved PW2 and the V money from being stolen. The appellant failed to summon his witneses to prove that he was there jt like other customers and was not involved in the robbery. The appellant has alleged that the finger ±± on the gun were not proved V V to be his so the appeal should be allowed as it has not been proved beyond reasona doubt that he was the one who committed the offence. I believe there was no reaso to do so. It was in broad day light and he v'aLV arretd red handed with the said gun so there was no need of sending the gun ba fingei prlzft which is also not conclusive evidence if not corraborate0 V. am of the same opinion CS that of the t V.jJ aistrate that the appellants defence is weak compared to the straip-ht and st ng 6se of the prose.ution an find no reason to distb its findings V The app al is thus dismissad. in its totality. It is so ordered S ,A0AN AIiBUiA P1INCLPAL R]3ID!2,TT 1tGISTRE (FJ) i4,'