Jaffary Mussa vs Republic (Criminal Appeal No. 18 of 1997) [1998] TZHC 2406 (24 July 1998)

If/ u:Ju~ in( .,,.Jl)-!U-) IN TKt.:; HIGH COURT OF 'IAi-..JZANIA Nl' MBEY.A . CRIMINJIL !.J?PEAL NO. 18 OF 1997 (From the decision of the District Court of Mheya at Mbeya 'in.Criminal Appeal No. 58 of 199'? Before~ P.A. Lyimo - Resident Magistrate) J AFF ARY i'1UiSBA 'APPELLANT Versus THE R.:;;PUBLI C ooooeooeodooooooo•o•O JUDGMENT . •.: The appellant 1 Jaffari lussa, and 'two other persons,. Wakisa Mwaijumba and Sadiki Kilasi, were . jointly id-icted befor.e .th~ ·urban primary court of Mbeya as_ the third, second., and first acctiseds· respectiveiy, - for Robbery with Violence,,

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contrary to sections 285 and 286 of the Penru. Code. ,, The first accuseci, Sadiki Kilasi, was acquitted, whilst the appellant· and· the second accused, VJaldsa Mwaijumba, were convicted as charged and each sentenced to the statutory ,minimum imprisonment term of fifteen yearso They bo.th felt' '' aggrieved and pref erred an appeal to the distric:°t court of Mbeya which was dismissed. The appellant then pref erred t_his second appeal which was resisted •.' before me by the learned state attorney for the Republic, ¥a- o Mulolrnzi, in the presence of the appellant who abided by the grou.rids in his memorandum of appeal. '211e first accused d Patrick_ Mhagama Dt-11 were friends and carpenters who worked at. the._ same place. 'rhey were wel known, to the second accused and the i.· .... appella.11t. The former -was a chips frier while the latter was a meat roaster. 'l'hey had a girl friend called :'-'iary re_siding in the business premises of the .,. .. •'••· . ,• .,. ' :: .... : . first accused and DW1 and they used to frequen~ that place. David Kasanga PW1, Peter Simoni PW2 and Sekelo Mwakasingili PW3 were welders working ;in one place, P-J1 was the father of PW2, 1-Ie owned a bicycle make Phoenixo No further description .of. the bicycle was g~ven, 'i1hey were unknown to t'1e appellartt and the first and second accuseds, ·. ,·., .. .. .- 0 • 0 0 0 • 0 •• 0 0 • 0 • 0 0 (I • /2 .,.

2 - In the afternoon of 11.L~.97 at about 4.00 pm PW2 left hot;ie in order to cut and collect grass (majani). ~~re had his father's bicycle. AS he ascended a hill three persons appeared from the roadsides and: held the bicyc],.e. Two were axmecl with pangas and they threatened to cut hi,n and held the pangas by his neck and waist while the third snatched the bicycle from him and made away with it. The two followed him. 1 rhe two were allegedly 1.dentified by PW2 as the, appellant and second accused person. They- had, before the tlneats, asked him who - the owner of the bicycle was. In the 1oorning of 14 .. 1.97 at about 8000\J;t the appellant and the second accused arrived at the place of work of the first accused and Di-i1 with a bicycle ' . . make hoenix (:&ct A). 'i'he appellant was riding it · and the 'second -accused his 1 . :-:; . . passenger. 'I'he first accused was short of na.Hs and borrowed the bic_ycle from them in order to go arid purchase nails. 'l'his story was confirmed by ·IYd1. On the wa:y the first accused rode close to the place of work of PW1, P'.12 .and PW3. · . _:· PW2 saw the b1cycle and told P'.J1 ·that it was the stolen oneo '.i. 1 hey held the appellru1t who told theni that he had just borrowed it from the appellant and second accused ,ho were at his pl&<.e of work. 'l'hey took the first accused and . 1::.::- t.:::. the bicycle to the police station where the first accused repeated the storyo •• , ' • 4 ! . ~ ,. : ' '"/· :· They went to the plae of work of first accus,ec,l with, the police and DW1 who had ~ • • • • • • '1: '. .. gone to the police stat'ion upoh he8.ring that rits CO-WOI'.k.:er -( fir;5t accused) had being arrested with the bicycle alleged tq have been stole~. 3ut the a.ppellant and second accused wefe n.c;:it found.ther~. 'fhy could not then be t::caced.. 'l'hey. had disappeared: from their plQ",Ces ,of residerice as weJ.l o.s i 1 'iary It was on '' ~ .. 4.-. ~ 9.5.97 that the appellant -and Jiecoud. accused l.llere found and .. artest~·d., at' th~ area of ·11emi. The appellant denied any complicity in the theft .•.. _ Ge was arresi:;ed at Ilemi area with second .Gtccused ru:icJ. infomed they had stolen the bicycle of PW2 .. Thy were ta!rnn to hwanjelwa polie . sta.tion. ,., . .- , . i ·' .- . Ile did not specifically deny · , having lent the bicycle (:SXt J,,,) to t.he: .first, accus€do ./3 :-...;

3 I would, with respect, agree with the lenrned state attorney that this second appeal is devoid of merit. .Ifi-1J3.!., I am satisfied, as were both courts below, that the appellant was properly identified at the scene of crimeo It was in broad daylight and the appellant had taken some time with PW2 before they disappeared with the bicycle.. .§ec~E.<fl...:L, the word of the first accused as to how he came by the bicycle found full support in the testimony of DW1. As rightly found by both courts below, ::JW1 was, in the circumstances, a credible witness. And !!.,, as rightly rei;Jarked by the trial court, the appellant I s abrupt disappearance from his place of residence was clearly indicative of~ person suspected, and shouldering a burden, of impropriety. The memorandum of appeal does not raise any point of substance which could detro.ct from the ·soundness of the conviction of the appellant, and the sentence handed down was the very minimum prescribed by 12.w. this second appeal in its entirety. JUDGE~ __ ........ ..... -- AT MBA-:.. 24 Suly 1998: For Appellant Present. :B'or .Republic: }1r. hulokozi, S.A. I CERTIFY irHA:r TtlLS IS 1-i. TRUE CGPY OF 'I'i.ii:: uRIGI.i'UJ.,o

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