Mussa Selemani @ Kupete vs Republic (Criminal Appeal No: 72 of 1999) [2000] TZHC 491 (9 November 2000)

, . .-· . . IN THE .DENT MAGISTRlTE' S COURT OF MTWARA AT MTWARA APPELLATE EXTENDED JURISDICTION CRIMINAL APPEAL NO: 72 OF 1999 ORIGINAL CRii'HNAL CASE NOo 128/98 OF THE DISTRICT COURT OF LINDI AT LINDI BEFORE: SoAo LILA, ESQ. RESIDENT MAGISTRATE MUSSA SELEMANI@ KUPETE----- ... -- ... ---APPELLA.NT Versus THE REPUBLIC--------------------RESPONDENT JUDGMENT BEFORE: SoJ. AWASI, SRM (EJ) Being aggrieved by the decision of Lindi Distri,t Court of Conviting and sentencing him to serve 30 years in jail fr an offen•~ of Robbery with Violence c/s 285 and 286 penal codet Capo16 Vol.1 of the Laws, MVSSA SELEMl.NI @ KUPETE is now appealing in this Court. He is alleged to have stolen one bicycle make Phoenix Frame N~.VIT.111935 ' from Hamisi Ahamad@ Mkae on 29th November 1998 at about 19.00hrs at Milola Village in Lindi District and immediately before or immediately after stealing · /etain did use actual violence to one Hamisi Ahamad @ Mkae in order to obtain or_. ··'"r·--- the said bicyclee During trial the evidence was that the c~rnplainant Hamisi Selemani (PWI) en 29th November 1998 at 19.00hrs he was riding his bicycle to Bondeni Msufini Geto from Kilimani area. He met the appellant who emerged from a P•mbe Shop, attacked him and beat }Jim with fists and te.ok away his bicycle threatening him with a knife •. He' reported to the Poli•e who arrested him with the bicycle-and the knife ~ometime later. PW2 Nuru Said Mbagala a resident of Milola Mashambani witnessed the attack and when the bioy~~~ was robbed by the appellant from the Complainant., He identified the knife wh'i.,::i was used by the appellant to threaten the Complainant. e ••• /2

'.;) '"'ir-. 2 "'')) PW3 E 0 142 PC Mohamed, a Policeman received the Complaint from PWio He confirmed the evidence of PWI that he took part together with his fellow Policeman to arrest the appellant while in possession of the Complainants bicycle and knife. The appellant denied that he committed the offence. He appeared to have raised a defence of alibi although he did not issue any notice as per section 194(1) CPA~ He said on 29/11/98 after a days walk arround Nanj:frinji Village, he returned to Milola at 16.00hrs and remained at home to sleeping time. Police came to arrest him a,d was searched and found with shs.3000/- in his pocket, 10 grams of gold and a bicycle receipt which showed that he had bought a bicycle. While at Lindi Police station on 1/12/98 a bicycle and bhang were brought to the Police station which bhang was said to have been found with himo The Republic has supported the convictiono Ya-. Mtinangi State Attorney explained that the appellant was caught redhanded with the bicycle which the Complainant identifiedc, ,He was arrested few minutes after the event. There was evidence that the appellant used actual violence and threatened the complainant with a knife. He used fists. These are enough elements of violenceo In his caution statement at Police Station, he agreed that he was in possession of the bicycle when he was arrested. In the defence of the appellant, he said he had a quarrel with PWI over a girlfriend. In his memorandum of appeal he said he had a quarrel with the complainants wife. ,Mr. Mtinangi believed that there were two different things, which showed that he is not certain of what he says •. He had not proved ite . During crossexariiinatlon, he did not ask the witness on the two important points. He said although the Republic does not depend on the weakness of the defence ij it does not help him, the points must be taken against the appellant •. The conviction and sentence of 30yrs in jail was proper, 31 yea:rs is the minimum sentence of sueh,.an offence. He referred the case of 'MICHAEL JOSEPH vs. REPUBLIC 1995 (TLR) P.278 which defines what is robbery., This Court does not differ with the Republic opinion. ...... /3

The fact that .the appellant was arrested a short time after the attack and he was arrested with the bicycle, the doctrine of recent possession is invoked and the Complainant identified the bicycle as his propertyl Although the appeilant indicated during defence hearing that he was arrested and was found with a teceipt for buying a bicycle, however he did not produce it as a defence exhibit. This shows he felt the receipt was perhaps not ganuinee This appeal fails, it is hereby dismissed. Date; 9/11/2000 Coram; s.J. Awasi, SRM (EJ) Appellant: Ab sent Respondent: Mr. Mtinangi·, SA B.C.Kulyohi SGDoS.J.AWASI,SRM (EJ) 9/11/2000 Judgment of appeal delivered today 9th day of November 20~0 in the presence of Mr. Mtinangi S/Attorney for the Respublic and in the absence of the appellant. Miss Kulyohi, S - R/A is present CERTIFICATE SGD. S.J. AWASI, SRM (EJ) 9.,11.2000