Boniphace James & Another vs Republic ((HC) Criminal Appeal No. 32 cf 33 of 1998) [1999] TZHC 311 (10 February 1999)

11111.... . :rn THE HIG:-l: COURT OF TANZANIA. AT TABORA APPELIATE JURISDICTION (HC) CRIMTIJAL APPEAL NOo 32 cf., 33 OF 1998 l . . ORIGINAL CR]}fll'JAL. CASE NOo 65 OF 1998 OF DISTRICT COURT OF MASWA DISTRICT AT Mi\SWA r.~~ Before: HoSoMo KINYEMI, SENIOR DISTRICT MAGISTRATE BONIF'tlA.CE Jn.ME.S & ANOTHER O o • c ., o o o • e e o o o o o • APPELL.\NT • 1

• ( " ( C"rigmal Accused) Versus IBE REPUBLIC 'JUD GM EN T. s.--=»-. ,-,--,,... .. RESPONDENT (0.:-igmal t>rosecutor) The two appeUtss .()E_,Pl1_a Ja,,mes and P.;,.niel,baA, were charged with robbery with violence c/s 286 and 265 of the penal ' r ; ,, codeo They were convicted and sentenced to Seven yea.rs imprisonment. -,.~ .-;-~ . Mro Mwarn:romat the. learned state attorney who represented the Eepubli&, ·, \ . has urged me to dismiss. t,he appeal, for he thinks it has no merito Mr., Mwampoma has also submitted that the sentence of seven years imprisonment imposed on the appellant offends the provisiorl3 of Act Noo 10/89~ I do ag:t'.6e with Mr~ Nwampoma that the appeal has no merit at all. IT anything, the evidence is. so overwhelming that, I think, in the first place, the case ought to have been tdismissed summarily. i On 29/3/98 9 at 2 .. 00 aomo the two appellants, Boniphace James and Daniel Thobias pounced on to the door of a house where }m .<¥~<?..~~~ Rn., had been sleep:ing with her two children. : Unfortu- nately the complainant is related to the first appellant, 13oniphace Jameso It is said that the comp..1ainant calls Boniphaoa her 0 unclen. . .;,. ...

2 As regards the second appellant, it is said that .he (Daniel Thobias) had once pawned ·out a watch to the complainant. The 2nd appellant had anted 9 buy cigarrettes but he had-no money• So,he put a wach the as a pawn. These are indications that they k.J?.ew cac:l:l othep to.o i.yell. ,, I A;fter. the rob:bE:ry :i.μ the house 1 the appellants ran away.· I .. J' • But 1 when Pfop;t.e eanif i:°· the scene, :in answer to the alarm ·, raised by the oomplaant, the ompla:inant mentioned the l.,names of the assailants straighto So, I agree with Mro Mwamporria that, actuaJly there ould be no question of mistaken identity. After sqru:til~~:Jhe evidence, I am satisfied that principles as J.. . . . · enunciated :in the case of 1.:,.:!:____y98£7 ToL.R. · 2 5 0 and those in the -.1:3-:':, .°.~.: /:T97?J "tB 224 are met in this present caseo• The defence of the rirst appellant,.Boniphaee James, is that on that day he had slept at a friend and that the police just · came and. fished him !>Uto Indeed he did ~ sleep at his home for fear that the police would arrest himo Similarly the second c:::.ppellant told the Court that Sungusungu·just .came to arrest him for no apparent reasoner I am, satisfied.that the ~onviction WM propero 9 . . Mro Mtrampoma has so submitted that the sentence is illega1.o He feels that it should have been fifteen years imprisonment for each accusedo I agree with .Mr. Mwampoma. Although we are told that there was a panga around, being held by the second appellant, yet we see that the panga waE not ued at allo But, it was an offensive weapon neverthelesso The appeal against conviction is therefore dismissed. The sentence is, hever~ correctedo It should read that both

,. ---· ····• ,· 3 appellc:.nts are sentenced to fifteen years r1.s::nment At Tabora 10th February 19990 Mro Mw:ampoma State Atto:piey for Rerublicc Appellanto Absent (octh) · · .. . ,,.