Juha Awasi vs Republic (Criminal Appeal No. 46 of 1999) [1999] TZHC 273 (1 September 1999)

I I, I I, IN THE :RJI:SIDENT 1'1AGISTRA'J:'E 1 S COURT 1 0F ,MTWJ\RA ' AT Hl''.,JARA APPELLATE EXTENDED JURI.SDICTION ' 1, CRIMINAL J.PFEZL NO. 46 OF 1999 I , ORIGINAL CRIMINAL CASE NO. 628/1996 OF THE i)ISTRICT COURT OF 1ASASI: AT 'filASASI BEFOPS E.S. i,lNYf.1.MBE,.•·ESQ D/ r:AGL'3TRNrE r JUHA AWASI----------APPELLANT Versus I j THE REPUBLIC---------RES"?ONDENT ,,, JUDGMENT Before Ma.sasi District Court the appe11Jnt was charged with Robhcry with I violence c/ss 285 and ?.86 of the penal code, :vo1.1 Cap, 16 of the Laws. ' At the al:ld of the day the trial Magistrate found him guilty, convicted him I as charged and sentencd him to suffer in custody for fifteen (15) years. Aggrieved with the \onviction and···-sentcnce h6 is now appealing to this Court. At the hearing Q.f the appeal the. appe11int was not present. The ' Republic was represented by Mr. Mtinangi, the learned State Attorney. ' ' Hr. Mtinangi argued that since the Republic does not support conviction and '· sentence passed by the trial Court, th._e requirement of the appellant to be -present in Court at the hearing of his appea could be dispensed with. T!1.is Court saw relevance in his arguement and proceeded to hear the learned I State Attorney. ]' In the main Jvl'.r. Mtin.a.ngi argued that the prosecution case rested on ,, ,· the evidence of only two witnesses. Those w'itnesses were not of any aid for I two reasons. Firstly the col!lplaina.nt, PWI is a blindma.n. He could not therefore ider,.tify the bandit at all. :Secondly there were two persons in I I :, the company of the Complainant. Those are alleged to be the ones who arrested I the appellant after a chase. Unfortuna.tely·thoy were not summoned to testify ' ' to the court to confirm what the Complainant, blindma.n, said~ 1' The second witness, PW2 one Abas s/o Rashidi, in his testimony said he met !' PWI, the Complainant, Complaining that he hAd been robhed of his Radio. One I<aziyao .Salum pointed at the appellant o be the bandit. As said ,, Kaziyao Salum did not testify to the trial pourt • .2 The learned State Attorney further ared.tha.t th~ apμellant laised/ a defence of claim of right. He told t!le trie.l court that the Conn:>laina' was indebted to him in a sum of shs 5000/=., Mir, Mtinangi conclude~ th/ , 'r I .., r, evidence upon which convi ,~ in tho circumstances there was no sufficient be based. i • .. . /2 I

2 It is the cardinal principle in criminal liability t:hr-i.t the onus of proving -;he quilt of an accused person rests on the prosecution., The standard of proof is very high evidence must be wat~,rtight to the effect tl1at the proof is beyond all reasonable dobte Going by the evidence on record it is revealed· that P' one A bas slo Rashid met the complainant and heard him complaining that he had been robbed of his Radio. As submitted by Hr. Mtinangi, learned State Attorne:,•: PWI the complaina·1t.: could not have identified or easily recognized his robbPr, if a·~ t:'ll because he is a bhindman., The one who pointed at the appellant to be the :i:-obber did not testify to the trial Court., In tho nJi:n circumstRncei:.: t;1,c::-o ,·sts no sufficien-, evidence to prove the guilty of the appellant. As said even t"i;Dse who were alleged to have ar!"·csted the appellant were not summoned to "':8f:i:"'? to the Court,. There is a further important point which the trial court ought to hc:-.ve considero~ it seriously. The appellant raised a defence of claim of richt,. Thc.t the Complainant was indebted to him in a sum of shs 5000/-. He indicated that he toe·: the radio from the Complainant on that basis. The trial Mar;istr,.,.te did not a.ttac·t--._ more we~ght to that him of defenceo As this played down th0 prosecution case, conviction was not sustaniablee After considering all this I find that there was no ba,sis upon which the trial Court could have grounded conviction. I, therefore, 0uash the conviction and set aside the sentence imposed on the ap-pellant. The appellant is to be set free unless he is otherwise lawfully !1eld in conr..ection with other charge or charges. CORAM. A.A.NCHIHBI -PRM (:SJ) Appellant absent For Republic - Mr. Mtinangi SG:::J .. A.A.NCHIMBI ·· PRINCIPAL RE.3IDENT MAGISTR,\TE (E.J) 1/9/99 Court_t Judgment has been deli vercd this 1st day o_f Scptembc:::. 1999 SGDc A.A.i\JCHIMBI (EJ) PRINCIPAL RESIDENT MAGISTRATE 1/9/99