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Judgment

IN THE RESIDENT MGITT S COURT OF MTWARA itT MTL2 PPEILE E TDED JIGDI0TI0N ORIMIN.hL àPPEL NQ. 9 OF 2000 017 CRIMINLL iPPEitL NO. IP OF. 2000 : ORIGINAL CRIMINAL GISE NO.247/OF 1998. OF TIM DISTRICT COURT OF N CHiNGJE itT thCHINGW B'ORE: J,K.A. KHLIKI : 3Q, P/DISTRICT MAGISTRATE

USBIO FRNCIS) .. -, 2 9 .NDRW VICENT ) .Vesus TUE REPUBIiLC—--------RESPOTDENT ,JUDGNT BFORJ.J , 1 WaSI g$M(E This is a consolidated appeal, for joint appeal to' US3I0 FR.N0IS and iNDREJ VIC..T and another appeal of ciiilva MPUNGA 6 NGOM. In this appeal they are referred to as tb id 46n4 3rt appellants respectively. The appellants are appeaJ against oonviations an Senteea imposed on them by Nac''ingwea Ditr.ct Court for en'e •. Eobbery c/s 285 and 286 pel Code, Oap.16 Vol.1 of the ws 1 They wez'e alleged to have jointly and together ton the make phøanix vaJ.ed at shs 53 9 000,'-, 8 kgs c)f rce valued 01h42000/..9 5 kgs of beans valued at shs 2500/- 9 2 kge of amd fish valued at sha 1000/... all total valued at Tshs.58,5/.. the ppprt Z ne MT15S 1 895 Corpi. Sa.id.i Saidi and, at or medaly r in2mtte-te1y after the time of such stealing did u44 psna. vio3enc.e to the sai&i. MT. 54895 CPL. Saidi Saidi iii ode to oLbtain or retain the stolen property. In their memorandum of appeal, the appellants mainr rai aqd a dpfence of alibi ttio ugh they did not gi.ve nt,Qe on i as per section 194 CPA. They were not 06wilt identiZ. there was no identification paxde which was oon4vqV , Cd.. A summary of evidence giVe.1 durin,. WzLzt was that, the Complainant Corp. Sai4i. Saidi .(AI) . has seve with .JKT Nachingwea Camp for 8 years was rebuj'rjir to his JET Camp at 73Qpm on 30/10/98 with his bicycle. N . ..

2- At Naipixigo bridge he was attacked 1: 3properly identified. Mpunga (rd appellant) a he fought iiitn for a 4orig time and he knew him before that day,. The 2nd appellant hit hiiniith .n iroi bar on his forehead, the 1st and 2nd appellant f14 mW with the Coniplaiianta biøyole while he continued strting with 3rq1 appellant Mpi.rna until when Set. Mhingo arrived with his m0.iøyc3. which had a lamp which its light eab1e6 thé Cmp1inait to q,ognise the 3rd. appeflazt? 8yeral .terni were al.Q 4t4eztinc4in "LAM" J'IT 41190 OCR MiIGO (W2) co.Vame4 eaA 14i4 be nc 4 the 3rd pelJ.4t a he k4w h4,m pfn j this incidat0 He dj4 n enie e qtti6r 2 aus liht )LL n 1beLx , bak when they were fJ.eein, The scere of crime '.as visited by No E.Ji4 )308na :. 4tai ta!a4 11 , I t have jst b4On a'rete4 by the 'olzoe and, 04 ,ipatlebPliver hf1eb. ep.11arrt told, the Police he did, not knpi Mpunjbu 44 çpea ssi4 he icnew him an4 vaj=tered t J4 #h_j,? oljcj to flpWhow6nàtathiahorne. The 3rd. Appol lant oai4 to, have left to tp ts3 øi 't8"1 Q)9& an ret u'ned p Q/M 2/98. wh e 1 p 'h Wi .:.::p• no of cz'irne on 3Q/IQ/9 ,.. When hrne W.. by Pø2ice .nd chax'ed. o this offencQ, r j - e Republ.io euppr'te the oo.iv'iction for th 3rd. appe:iane O3Lver Mpunga alne afld, do.es not su?port okiviten £o tre 41 , Mtiiangz, State 4'tney om the Repub1ir ieid P4I ha4 4entiti4 be 34 0 ewit and ie Xnew, nini even befors thç £noidert, Thin the.. ataok ther had fôight for a long tn', 1hy were p]yig' tqotball In th aain team NahIngwa shOotin W2 recogniped the 3rd appell4rt wrwn he came to the spene crime ori a motoreyle which 1ad. a lanp igbt wii made t pgssjb t6t lu.mn to see the 3rd appellant c.eerLy,
'Mriltinangi vent on to say that the deenoe at alibj. Z.ed by the 3rd appeUairw an.gter 14ouh and he 4;1 n b4ng spy witness to confirmit moeove id not .-@se the d.efeng #lbi before the case began as per aect±&i 194(l) opa •I/3. . Ik
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He concluded that the eviece against the 3rd ae1J.ant is strong but evidence agaiLct the let and 2nd appellaLt was wk and the 2 appellants should be released from pr,son. This court agrees with the Republic's view in this appeal. Though the incident occured at about 7.30pm ie at nigh the aesoription of the light which enabled Wi and PW2 to.S, .th6 3rd appellant. a4#4 the issue of mistaken identity on 3 not arise. Both PWI & W2 know the 3rd appant Xre t hS ay the incident ocoured, ASIF tbe othe±' 2 asajlflts ;ozn the area when the Oomplainant struggled with tt4 3Vd appellant at when PW2 apearei with his inotorvehicle, there ws zo proQf that the twQ people were actuall the 1t and 2nd appelldnts. although the 3rd appellant had indicated in his memQzan.um • appoal on the absence of an identification parade, this wV no sq snpoz'tsnt because both WI & PW2 knew the 3rd appla.it Ore Mpuna even betore the day the oaime was committed. •The ..appal i a øwed inTrotof the 1s appellct tft JQ flOIS nd2ND Both to £rQIn rieon unless held for otr lawf.il_iurt,oae, - - Judiflent hag been dLtUiV6iea tbty 9tH dat' of NQvn1bø? -theabaence of the appellant and 1±1 the presence of Mi iRA1 '.'. MuaiLcate ittorney for the Republic. 1' RA is present certify that this is a true copy of the criginai.. RESIDEI'T M..GISTRTE I- 5GD.SJ.4W4SISRM (EJ) 9/11/2000

Judgment

USBIO FRNCIS) .. -, 2 9 .NDRW VICENT ) .Vesus TUE REPUBIiLC—--------RESPOTDENT ,JUDGNT BFORJ.J , 1 WaSI g$M(E This is a consolidated appeal, for joint appeal to' US3I0 FR.N0IS and iNDREJ VIC..T and another appeal of ciiilva MPUNGA 6 NGOM. In this appeal they are referred to as tb id 46n4 3rt appellants respectively. The appellants are appeaJ against oonviations an Senteea imposed on them by Nac''ingwea Ditr.ct Court for en'e •. Eobbery c/s 285 and 286 pel Code, Oap.16 Vol.1 of the ws 1 They wez'e alleged to have jointly and together ton the make phøanix vaJ.ed at shs 53 9 000,'-, 8 kgs c)f rce valued 01h42000/..9 5 kgs of beans valued at shs 2500/- 9 2 kge of amd fish valued at sha 1000/... all total valued at Tshs.58,5/.. the ppprt Z ne MT15S 1 895 Corpi. Sa.id.i Saidi and, at or medaly r in2mtte-te1y after the time of such stealing did u44 psna. vio3enc.e to the sai&i. MT. 54895 CPL. Saidi Saidi iii ode to oLbtain or retain the stolen property. In their memorandum of appeal, the appellants mainr rai aqd a dpfence of alibi ttio ugh they did not gi.ve nt,Qe on i as per section 194 CPA. They were not 06wilt identiZ. there was no identification paxde which was oon4vqV , Cd.. A summary of evidence giVe.1 durin,. WzLzt was that, the Complainant Corp. Sai4i. Saidi .(AI) . has seve with .JKT Nachingwea Camp for 8 years was rebuj'rjir to his JET Camp at 73Qpm on 30/10/98 with his bicycle. N . ..

2- At Naipixigo bridge he was attacked 1: 3properly identified. Mpunga (rd appellant) a he fought iiitn for a 4orig time and he knew him before that day,. The 2nd appellant hit hiiniith .n iroi bar on his forehead, the 1st and 2nd appellant f14 mW with the Coniplaiianta biøyole while he continued strting with 3rq1 appellant Mpi.rna until when Set. Mhingo arrived with his m0.iøyc3. which had a lamp which its light eab1e6 thé Cmp1inait to q,ognise the 3rd. appeflazt? 8yeral .terni were al.Q 4t4eztinc4in "LAM" J'IT 41190 OCR MiIGO (W2) co.Vame4 eaA 14i4 be nc 4 the 3rd pelJ.4t a he k4w h4,m pfn j this incidat0 He dj4 n enie e qtti6r 2 aus liht )LL n 1beLx , bak when they were fJ.eein, The scere of crime '.as visited by No E.Ji4 )308na :. 4tai ta!a4 11 , I t have jst b4On a'rete4 by the 'olzoe and, 04 ,ipatlebPliver hf1eb. ep.11arrt told, the Police he did, not knpi Mpunjbu 44 çpea ssi4 he icnew him an4 vaj=tered t J4 #h_j,? oljcj to flpWhow6nàtathiahorne. The 3rd. Appol lant oai4 to, have left to tp ts3 øi 't8"1 Q)9& an ret u'ned p Q/M 2/98. wh e 1 p 'h Wi .:.::p• no of cz'irne on 3Q/IQ/9 ,.. When hrne W.. by Pø2ice .nd chax'ed. o this offencQ, r j - e Republ.io euppr'te the oo.iv'iction for th 3rd. appe:iane O3Lver Mpunga alne afld, do.es not su?port okiviten £o tre 41 , Mtiiangz, State 4'tney om the Repub1ir ieid P4I ha4 4entiti4 be 34 0 ewit and ie Xnew, nini even befors thç £noidert, Thin the.. ataok ther had fôight for a long tn', 1hy were p]yig' tqotball In th aain team NahIngwa shOotin W2 recogniped the 3rd appell4rt wrwn he came to the spene crime ori a motoreyle which 1ad. a lanp igbt wii made t pgssjb t6t lu.mn to see the 3rd appellant c.eerLy,
'Mriltinangi vent on to say that the deenoe at alibj. Z.ed by the 3rd appeUairw an.gter 14ouh and he 4;1 n b4ng spy witness to confirmit moeove id not .-@se the d.efeng #lbi before the case began as per aect±&i 194(l) opa •I/3. . Ik
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Usabio Francis & Another vs Republic (Criminal Appeal No. 9 of 2000) [2000] TZHC 376 (9 November 2000)

Judgment

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Discussion

Usabio Francis & Another vs Republic (Criminal Appeal No. 9 of 2000) [2000] TZHC 376 (9 November 2000)

Judgment

' h

Discussion