Fredian s/o Mwasenga vs Republic (High Court Criminal Appeal No. 151 of 1987) [1988] TZHC 411 (29 July 1988)

__ • IL C - bc-- ~ I IN THE HIGH COURT OF TANZANIA MbI NA A?LLATE ISDICTI (Mbera.egistry) / . '• HIGH COURT CRIMINAL APPEAL NO.,. 151 OF 1987 (ORIGINAL CRIMINAL CASE NO58 0 7 . 1 9 87 O / THE DISTRICT COURT OP MBOZI DISTRICT AT VWA WA Before: R.K. Zambi, District Magistrate) FDIAN ERSUS TiE REPUBLIC:: : ::::: : :: : : : : :: : : : :': : : :RESPONDE1T d HARGB: 1soount Robbery with violence c/s 2135 and 286 of the Pnal.Code i' • 2nd&3rd. count hrm c/s 225 of the Penal Code ca 16. of he Laws. J U D G MEN Yste'rdäy when I heard this'appeal I a1lowod it byuahing the lower court judgment and set aside the sentekcos. imsed, b it, I ordered that the appeila±it be set free forthwikh uiJes. held for some other lawful cai.se. T reserved reasons w1'jch I flW give The apel1ant was convicted on three eounts by thi DIstric1 Court of M1ozi 'fOrrobbery with'vio1enc and tPWQ ouris of causing grievous harm. He was senten'ed. to sven years imriaonment on the robbery count and to six and seven montha. 'imprioaune. on the second and third ebunts ' potive.ly whi,oh raate.a tr, o ausizag gri&vous bodily haxm, ' ' " . • It had been at1oed that the ap ha ..and five other people broke into the houe Of the co1airañt"— PWI' at about p.m. at

/ - 2' nigh on 30/4/87 The burglars stole a Grer •.•ct n,cas$ and othe items 0 In the course of the stea:! 1. and his wfe were attatked and wounded 0 It was' bclie and clubs weye used to use the injuries ;::: ' ' :, '• ' ( O'ii. :L9th May, 1987 the houc of' the "apiianwas srched on usicio and nothing incriminating was: fourid.in it excetb one round of ammunition, according toPW4 Sergeant Ephraim vj10 ionducted the sDa 4ch 0 Dhere had been n,o reports that rounds of aiiunition were a10 stolen from PW1 nor is there evidede that tI one 'round of ammunLtthan found vrth "-the' "àpp.ellant was for a s1".oLfl. Du1tng evidence, PW1 and his wif,e PW2' bQth the appl1at was one of, the robbers 0 But none said iio the appellant was rec)gnized cut of the sx bandits e It was sa[ 10 appellant usod a torch but it wa not cxpLained iI' and ho L 1 toich—light enabled those witnesses to identify the appel.1ant Since the prosecution case squarely dependod c. the need' for accurate 'identification and as such evidence was Lc1ing and there was other evidence whchrimplicatod the appol1a it t elear that the chagos.àginst '.Iad not beet le doubt and.. the .trial:-.qourt shoulJ IL'vt •It Is also observed that aftor three prosocuton, witnesses had 'oa±ifi'ed a fresh charge : , wa 'substithted 4 Hôe the appo.liant wE3 not informed of his right under section 234(2)6) of the Orimina1 J.?rcceduro Act, 1985 to demnd th-a!b'the vitnessés o' any of them be rccalled and give evidence afresh or be furter crcs examiner For the above roasons,and as the io.irned State Attorney for the e's'pondent Republic did iot, support the conviction I J,1owed th • ' . ' ' :'

-3 . .. appe1 by quah±ng the 'oonvioti6ne.and sati ting asido the sent'6nces imposecl on the appellant, -JiAl MrOSO .t Mbeya J11D2 29/7/88 AM/ATM' lirna. /