Monday Mwashiuya vs Republic (Criminal Appeal No. 117 of 1996) [1999] TZHC 440 (12 May 1999)

IN THE HIGH COURT OF TANZANIA i', T MBI!."'Y !1 + MWIPOPO , J • : ORIGINAL JURISDICTION 'l -. .i., . ' '(Mbeya Registry) CRIMIN.IIL APP.iI:i',L NO. 117 01<' 1996 (in the D{trict, Court of Mbozi District at Vwawa - Origin:tl Crim. Case No. 93 of 1996): MOND,W MWASHIUYA ••••ooo•.oooooe•o•eoo il.PPELIJ\NT ,- ' Versus THE REPUBLIC RESPONDENT JUDGEMNT The appellant MOND,\Y S/0 M:J,'lSI-iI~;-.\ was convicted with Armed Robbry C/ss. 285 and 286 of the Penal Co:}e by the le:rrned Mrs. Mtambo ·(Lt-1) in Mbozi District Court :1nr1. • W8.S sentenced to 30 ye.,'Xf'r:f imprisonment and . ' 12 str:)kes of cor1)or::u. unishment • He was also=-orde:ted to refund the ',. Sewinr; Machine, to.pe me'.:l.sure, 1 pair of scissors, co.sh 32,200f=, 4 goat ., . . ,. and 10 1:l.i:.r1.;s of oil after he finie,hes servini; the sentence. I better stnrt with the order of comrxmsation which w3.s 0roerecl to st3rt wit,h pffect after servin the 30 ye.·,rs imprisonment. It was an .. \ ' erronous orcier with regard to its ds.te of effectness. It should have been m:::i.de to take effect with immediate effect. I therefore correct this error o.nd order that such order should take immecliat_e effect and in ' - difault distress to issue against the properties of the appellant. As to th~ appenl itself the ma1n rounn is one of identity if the ,. appellant was proP,erly dentified. This problem has beon solved by the appellant• s cautioned statem·:::nt which was produced ns exhibit for the prosecution, If he said thnt he was roundacl up by people who took him to the h)use of PW.1 the Prim1ry School ·reacher where the robbery took pl::.ce. He sto.te1 that he got the injury by being hit with a sl:larp instrument while being t2.ken to PW. 1. Leiter on he made an addi tioncl cutioned st::-1.temant c:mfessinrs; to have 13one t'.J rob the teacher with armer.. co-h.a.rdi ts where e;ot injured., This cautioned statement was not repudi:::1.ted o.t oll. Possibly, it w,:,.s rotr,actecl for its contents were not repe:i.ted in his sworn testimony in court as Dw.1. But,. that is ' not the correct position for he W'le. not cross-exnmined on it so thd he could retruct it if he did not wo.nt to repeat it. The proper position i,s thnt he .:tbar1doned it in his defence by making no hint on it at all o.lth~ugh he he.::ird about its c0ntents while tho prosecution witness t0stified especidly by PW.6. Moreover PW.4 testified to have traced eo•••o/2

• 2 - the blood stains from PW.1 1 s house the scene of crime up to one very house of the anpellant fr,r away and even across a river where they found the a~;rpellant 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 '.>f the robbery and that each other for they used to pray together in the ,\ssemblies of God Churcho This is a usel-.i:ss appealo It is dismi'Ssedo (Sgd.) 12/5/99 Mwipopo, J. iippellant: Montl.ay Mwashiuyo. - present in person. Mr. Nnniseln - S/t,tbrney - For respondent present. C/C. Mr. Mwakyusi. E.LoKo Mwipopo, J. 12/5/99 ,, curt: Judgement ieli v-·red in the presence of both parties. I CERTIFY E.L.K. Mwipopo, J. 12/5/99 / (· ·\ ·, . -~ - thnt tli!i.s is .'.l true copy of the original judgement. if ·.,·~,l ,-1 .,> ,1 (: ·u-· - ; __ ,/.,,, ,., ··'";' ..,."4 i'...A '· DISTRICT RfilISTRr';R ·