Monday Mwashiuya vs Republic (Criminal Appeal No. 117 of 1996) [1999] TZHC 221 (12 May 1999)

t H - IN THE HIGH COURT OF TANZANIi\ iT MBEYi OPIGINALJUPISDICTION (Mbeya Registry) CRIMINfL APP,L NO. 117 OF 1996 (In the District Court of Mboi District at Vwawa - Original Crim. Case No. 93 bf 1996) MONDY MIASHITJY1.i APP1LANT Versus THE REPUBLIC ...................,.... RISPONDT JUDG4 MWIPOPO 1 J.: The appellant MONDAY S/O MWiSHIU was convicted with Armed Robbery C/ss. 285 and 286 of the Penal Code by the learned Mrs. Mtnmho (i) in Mbozi District Court am-IT was sentened to 30 years imprisohment and 12 strokes of corporal punishment. He was aJsf ordered to refund the Sowing Machine, tape measure, I pair of scissors, cash 32,20=, kgcats. and 10 litres of oil after h finishes serving the séntnce. I better start with the order of compensation which was ordered to start with effect .fter ,erving the 30 ye.rs imprisonment. It was an erronous order with regard to Its date of effectness. It should have been made to take effect with immediate effect. I therefore correct this error and order that such order hould take immediate effect and. in difault distress to issue again6t the properties of the appellant i5 to the appeal itself the main ground is one of identity if the appellant was properly identified0 This problem has been solved by the appellant's cautioned statement which was produced as exhibit for the prosecution. If he said that kEe was rounded up by people who took him to the house of P14.4 the Primay School Teacher where the robbery took place. He stated that he got the injury by being hit with a sharp instrument while being taken to PW.1 0 Later on he made an additional cautioned statejn2nt confessing to have gone to rob the teacher with armed co-bandits where got injured. This cautioned statement was not repudiated at o.11. Possibly, it was retracted for its contents were not repeated in his sworn testimony in court as D1.1. But, that is not the correct position for he was not crcss-exined on it so that he could retract it if he did not want to repeat it. The proper position is that he abandoned it in his defence by making no hint on it at all although he heard about its contents while the prosecution witness testified especially by PW.6. Iloreover PW. 1+ testified to have traced / 0 0 0 • • ./ 2

-2- the blood stains from house the scene of crime üp to one very house of the aepellant fr away and even across a river where they found the appellant hiding under his bed with the blood stains and wound on his head. PW.1 identified him for he had a torch at the time of the robbery and that each other for they used tOpray together in the tssemblies of God Church. This is a uselea appeal. It is dismssed, (Sgd.) E.L.K. Mwipopo, J. 12/5/99 12/5/99 Mwippeo, J. ippel1ant: Monday Mwashiuya - present in person. Mr. Nano1a - S/tto'ney - For respondent present. C/C. Mr. Mwakyusa. Court: Judiement lelivf-,red in the presence of both parties. Mwipopo 1 J. 12/5/99 1 CEPTIFY that t}s;is a true copy of the orinal judgement.

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