Nyang'anyi s/o Chacha vs Republic (High Court Criminal Appeal No. 94 of 1999) [2000] TZHC 465 (30 August 2000)

IN THE HIGH COUHI' OF TANZAl'{[A AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPJ<AL No.,9L1- OF 1999 (Original Criminal Case No.78 of 1998 of the District Court of Bunda District at Bundae fBefore ~ A. Magafu (Mrs.) Principal District Magistrate) • . NYANG'ANYI s/o CHACHA 000000000¢0000800 APPELLAI\1T (Original Accused) VERSUS Tli'E REPUBLIC oCtoooooooooooooooooooooooo RFSPONDEI'{[' (Original Prosecutor) JUDGMENT MBOSQ 1 JUDGE. At about 3:00 aom. on tne night of 7th November, 1997 the living house of one Arm.na d/o .Saidi, a teacher at Ligamba Primary School, was broken int• ax1d Shs.20,0QO/= cash as well as a matress and an .assortment of other property such as a radio, table clothes, bedsheets, • saucepans and bottles of body lotion were stolen from therein • .. According to Amina three people had entered her.room after they violently broke open the door with the use of a big stone., One of the burglers had a fl&.sh light and sticks. After the theft Amina raised alarrn and neighbours,who included teacher. Parapara of the same t school,responded to the alarm and joined the group of people who went . out to look for the thieves,.. A nwnber of the stolen i terns were by the thieves recovered after they had appa.rently been abandoned.Lin the course of ( fleeing from the scene.. One of those roobers was· shot with an arr,owo. have The a:;:-row was then recovered an1'..I v,as found to /...a piece of flesh on it •. The people who had responded to the aJ_arm followed blood stains from the arrowY. wou..-id. The stains led to a ho'use the door to which was broken in the presence of two policemen end Parapara (PH2) 0 There was no one in the house but i terns which were later identified as . - part of the stolen goods were recovered :from the house. Subsequently I I I I I I ! t I )

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.I. 2 the appellant and another person (not an appellant) were arrested as suspe:::ts and prosecuted for robb'e-ry with violence, contrary to sections 285 and 286 of the Penal Code. .The appellant wai,' found guilty and convicted as ch8.red while the oriinal second a.ccused was acquitted. The complainant had claimed that she was able to identify the appellant with the help of lamp light in her room., The trial court however, entertained doubt that the prevailing circumstances: were ccmducive to reliable identification~ The court found that some of the stolen goods had been found in the house of the appellant and believed that the appellant escaped to Musurna where he was arrested. This finding by the trial court has been challenged. The ·trial court's finding was based on the evidence of PH3 -- ;.: one Phinias s/o Masharnba, who cJ.2.imed that the house in which some of the stolen goods were found. belonged to the appellant. He clarified that the house belonged to appellant 1 -s motli~r ·and that the B;ppellant lived .with his mother in that housed However, evidence from: he <?-fl;>elianlt': and, his two witnesses-D-J2-- Bebester Ouditi and PW3--Ferdinand Manse was that the appellant did not reside in the ··· house which:. belonged to a lady called Ibrah. A person called Kichere was believed to be living in the house but was riot known where he disappeared too Both Phinias and·two of the defence witnesses sa:i.d in their evidence that blood stains were found in the house which Phinias claimed was being occupied by the appellant and his mother. It seems then that the person who was shot with an arrow entered the house and that ex-plained why· the blood stains ,rere traced right into the house. But there was no mention in the prosecution evidence that the appellant was found to have a fresl1 wound anywhere on his body• So, he could not have been the person who was shot with an arrow. Apart from the evidence of identification, which was not believed by .,: : ;

-' 3 the trial court, what other evidence was there to connect the appellant with the··offence'.? One might :;;ay Pinias I evidence that the appellant lived in the house. But how about the e'vid.ence of the appellarit and his two witnesses tho.t he did not live in that house? The trial Court did not discuss that evidence and there was no cgent evidence to discredit it o ifaicn then leads to the , ~~ • • I conclusion that the prosecution did not discharge its burden of proving beyond a reasonable doubt that the appllant was one of the robberso During the hearing of the appeal the learned State Attorney for the respondent Republic did not .supp_ort the conviction a'1d I think he is right o This appeal is allowed., 'l'he conviction is quashed · and the sentence of 15 years imprisonment set asideo T.he appellarit is to be set free forth,.,rith unless h; is being · held for some other lawful causes It is so orderede ·/ J-o Ao HROSO JUDGE i t ,.Mwanza, Mr,. Rwabuhanga, S oA., ,. i