Hashimu Mtamila vs Republic (Criminal Appeal No. 70 of 1999) [2000] TZHC 471 (28 September 2000)

.-- ... <' ·- IN THE HIGH coun•.r :JP" TANZANIA AT SONGEA CRIMINAL APPEAL NO. 70 OF 1999 (ORIGINAL SONGEA DISTRICT COURT CRIMINAL CASE NOo 277 OF 1998) .. HASHIMU MT.A.MILA ••••••••••••• .APPELLANT VERSUS: THE REPUBLIC e••••••••••••••• RESPONDENT JUDGMENT When admitting this appeal I made the following note:-· ' "DR. · Admit to consider whether indeed the offence of which the appellant was convicted is robbery and whether the conviction · is sound., Mr. lyanda, learned State Attorney, has submitted that the conviction is unsound and, as a result, he has declined to support it, arguing that only simple theft was proved. I agree, because the established facts do not prove the aggrev~ .. tcd theft termed robbery with violence. The record of proceedings of t_he trial Court shows that one Salimu Saidi Sadi (PW2) 1 who is a busnessman resident at Dar es Salaam, carries on business between tha.t city and the Ruvuma Region. He was at Mlilayoyo village, which is in this District, on 6th June, ~~98 where he had gone to buy soya beans. As he was taking his lunch at 1.00 p.m. The appellant in the company' of a third party approached the complainant. and invited himself to lunch e.t PW2 1 .s cost. The complainant, for good

• . cause, of course, declined to accept-the accused's mena~eso It seems • ..... ; 1
• .... ___ ... ~ .... , '· _;' _· , . . • r. to me that the appellant was intent on picking a quarrel with the complainant· i . _ ..

• a "" but the latter acted quite gentlemanly. ivben the e.pUaat•.a ,demand for free food was declined he raised yet another demand, this time for a free snapshot. i,s all this was c;oing on a bag of rice belonging to a girl who was nearby was stole::1 3.nd the complainant IO:int8d a,n..-ts:ine . finger nt the appellant. This infuriated the appeJ.lant 4 The· oomplainal\t then withdrew into the grocery in which had earlie taken his food as a way of avoiding further confrontation. The appellant followed -him there and, without further eXahahges, set upon attacking the complt1inant.- As the complainant neeled down uncle:. the impact of a blow the appellant sua.:tFed \ . PW2' s purse and fled with it. According to PW2 that purse contained \ . ;Sbs. 500,-00P.OO. It was on this evidence that t~ appeJJ iii\llt· was :,c.4;ed \ of rob.bery with violence. \ Now what must the prose cut ion do in order to secure a convi for robbery? The answer resides in section 2S:5 "f t,he P,eoal: CQde. ~~- .. states that that offence is c9~mijted by nr_perso_n - 11 _, 0 • who steals anything ond at or immediately before or immediately after the time of stealing it uses or t}:lreatens to use actual violence to any person or property in order to obtain or retain the thing st_olen or to prevent or overcome resistence to its being stolen or retained ••• 11. Thus the following ingredients must be proved to be pres:•

1. any person steals anything
2. in the course of the theft or immediately before or after such theft, .3. uses or·; threatens to use .a.ctuai. viol,euce
3. · in order to· obtain or retain the thing- stolen or to prevent o~ overooine resiste~ to its being stolen or Tetained. ' '· ..

I I / 3 In order to prove the first ingredient the prose cut ion must lead evidence that establishes the existence of animus furandi on the V part of the accusedo The second and third ingredients relate to the effectuation of the~~ rus through violence. The purpose of the violence is as shown in the fourth ingredient. In the instant case theft was established because there was asportation and the requisite !:...?1}lS reus_. That this is so because it is quite obvious that the complainant did not consent to his being deprived of his purse. So the icsue is whether the violence was intended to overcome resistance from the complainant. I have, in any re-appreciation of the evidence, found it a little hard to associate the violence wit the theft. If the purpose of the violence was to facilitate the theft then the appellant is a very skilful thief• For all that he did cannot . a · easily be assumed to corl.stituteL .chain of events which were ili.ined at creating terror in a bid to overcome resistance. I would, ih the circumstances, give-hiirl the· benefit -of -my doubts -and therebi, agree with Mr,. Manya.nda that the appellant snatched the complainant I s bag in a chain Qf events which had nothing to do with a premeditated.plan to steal the purse with violence. I would, as a result, hold that the offence that was proved was simple theft! Upon the foregoing considerations I hereby quash the convi~~ion for robbery with violence and, in terms of section 366 (1)(a)(ii) of the Criminal ProcedurE.: Ji.ct, 1985, subtitute it with a conviction for stealing c/s 265 of the Penal Codeo On the same parity of reasoning the sentence is reduced from fifteen years to seven years imprisonment. The appeal is otherwise dismisse~-~ Judgment to be delivered by the District Registrar on 27th September, 2000, JoMo Mackanja Judge 22/9/2000

27/9/2000 Coram: s.A. Lila• mi, Parties: Absent. c.c. -- Kapihga. 4 Order: I am attending my sick family., Judgment on 28/9/200 s •. A. be notified. 28/9/2.000 Coram: S.A. Lila 9 DR. Appellant•: Absent. DLSTRICT REGLSTRAR 27/9/2000 For Respondent: 1"1r. Manyanda, State Attorney. C/C: - Kapinga (Miss) R/A. Court: Judgment delivered today before Manyanda SA;- for Republic and in the absence of the Appella.nt.; Lila DISTRICT REGISTRAR · 28/9/20CXJ that this is a true copy of the original. DISTRICT RIDISTRAR SONGEAo &='1-.S-=-t:.