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									                     IN THE COURT OF APPEAL OF TANZANIA
                              AT DAR ES SALAAM

(CORAM:    MUNUO, J.A., NSEKELA, J.A., AND MSOFFE, J.A.)

CRIMINAL APPEAL NO. 39 OF 2002

HIJA UWESU……………………………………………………. APPELLANT
VERSUS
THE REPUBLIC………………………………………………. RESPONDENT

(Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)

                                   (Luanda, J.)

                       dated the 20th day of August, 2001
                                        IN
                      H/COURT CRIMINAL APPEAL NO. 28 OF 1999
                                   -----------
                           JUDGMENT OF THE COURT

MUNUO, J.A.:


     In criminal case No. 1277 of 1999 in the District Court of Ilala at Kivukoni
within Dar-es-Salaam Region, the present appellant was convicted of robbery
with violence c/s 285 and 286 of the Penal Code. He was sentenced to a term of
fifteen years imprisonment. Aggrieved, he unsuccessfully appealed to the High
Court of Tanzania in Criminal Appeal No. 28 of 1999. Luanda, J. set aside the
sentence of 15 years imprisonment and substituted therewith, the mandatory
minimum sentence of 30 years imprisonment for robbery with violence because
some four bandits committed the charged crime and in that regard the appellant
was liable to thirty years imprisonment under the provisions of Section 5 (b) (ii)
of the Minimum Sentences Act, 1972 as amended by Act No. 6/94. Aggrieved by
the decision of the High Court, the appellant preferred this second appeal.
     Testifying as PW1, the complainant, Gerald Dominick, deposed that the
appellant and three other suspects confronted him as he disembarked from his
vehicle and jointly seized Shs. 257,260/= from his pocket. Accompanied by PW2
Peter Pata, PW1 ran into Small Garden Bar where the appellant and his
co-suspects followed him through the rear door. That the parties quarrelled at
the bar was confirmed by PW3 Barawa Andrea. He stated that he was awakened
from sleep by shouting and quarrelling in the bar. He said that he saw PW1 and
the suspects quarrelling but he could not tell if money had been stolen from
PW1. PW2 also stated that the parties quarrelled and fought but he could not
tell how much money was stolen from PW1•fs pocket. The complainant further
stated that his neck, shoulder and waist were injured in the attack so he
reported the matter at Magomeni Police Station where he got a PF3, Exhibit P1,
for treatment. PW1 said he only identified PW1 by name because he knew him.
The appellant and another suspect who was acquitted by the High Court were
then traced and arrested. They first appeared before the trial court on the
30/12/97, over three weeks after the incident on the 5/12/97. They were initially
charged with the offence of stealing from the person of another c/s 269 (a) of
the Penal Code, Cap 16 as reflected at Page 1 of the record of appeal. The said
charge, as will be seen later on, was substituted with the present charge of
robbery with violence c/s 285 and 286 of the Penal Code.


     Upon convicting the appellant, the trial magistrate observed;


           THIS COURT HAD THE ADVANTAGE TO CONSIDER THE DEMEANOUR OF
           THE WITNESSES AND THE WAY THEY ANSWERED THE QUESTIONS PUT
           TO THEM IN CROSS-EXAMINATION AND FULLY SATISFIED                (THE
           COURT) THAT THE ACCUSED WERE THE PERSONS WHO ATTACKED THE

           COMPLAINANT AND STOLE HIS MONEY.      THE   OTHER TWO WERE NOT

           ARRESTED AS (THEY) DISAPPEARED FROM THE AREA.         AT THE POLICE
           STATION THE ACCUSED ADMITTED BEATING THE COMPLAINANT BUT

           DENIED THE STEALING BUT LATER DENIED EVEN ARRIVING AT THE

           SAID BAR.   I FIND THE ACCUSED GUILTY AND CONVICT BOTH ACCUSED
           OF ROBBERY WITH VIOLENCE C/S        285   AND   286   OF THE   PENAL
           CODE.


     Upholding the conviction and varying the sentence imposed on the
appellant, Luanda, J. held that –


           ---The circumstances of this case which the trial court
           relied on is to the following effect.           First, the incident
           occurred around evening hours and there was electricity
           light inside and outside the bar. Second, the incident did
           not take place at a flash. It took sometime. Third, the
           complainant       was    attacked     twice       namely,      while
           disembarking from a motor vehicle and inside the bar.
           Fourth, the assailants were at zero distance from the
           complainant.        These circumstances are in my view
           favourable conditions of identification.            Like the trial
           court, I am satisfied that the appellant was among the
           four assailants –
On the sentence, the learned Judge observed that the sentence ought to have
been 30 years imprisonment as stipulated under the provisions of Section 5 (b)
(ii) of the Minimum Sentences Act, 1972 as Amended by Act No. 6 of 1994 which
requires that the sentence by gang robbery like in this case where four bandits
allegedly robbed the victim of cash. Shs. 257,260/=, should be 30 years
imprisonment. Section 5 (b) (ii) states:


           5 (b) (ii) If the offender is armed with any dangerous
           offensive weapon or instrument or is company with one
           or more persons, or if at or immediately before or
           immediately after the time of robbery, he wounds, beats,
           or strikes or uses any other personal violence to any
           person, he shall be sentenced to imprisonment to a term
           of not less than thirty years.


     In view of the provisions of Section 5 (b) (ii) of the Minimum Sentences,
Act, therefore, the High Court set aside the sentence of 15 years imprisonment
and substituted therewith a sentence of thirty years imprisonment.


     Dissatisfied with the conviction, sentence and compensation order the
appellant brought the present second appeal. The appellant was unrepresented.
The respondent Republic was represented by one Mrs. Kabisa, learned State
Attorney. Four grounds of appeal were lodged by the appellant. He alleged in the
first ground of appeal that the trial court erroneously grounded the conviction on
the police statement he made after arrest. The learned State Attorney correctly
observed that no police statement was produced at the trial so the 1st ground of
appeal is lacking in merit. We accordingly dismiss the first ground of appeal.


        In ground 2 and 3 of the appeal, the appellant complained that charge of
robbery with violence was not read over to him so he never pleaded thereto
which omission renders the trial a nullity. He further complained that his guilt
was not established at the required standard of proof for criminal cases so he
should have been acquitted. The learned State Attorney conceded to grounds 2
and 3 of the appeal.


        With regard to the substitution of the charge of robbery with violence, we
could not, during the hearing, trace the proceedings of the 24/12/97, in the
original record. When we carefully again scrutinized the original record before
writing this judgement, we indeed spotted the said proceedings. The Mention
proceedings on the 24/12/97 read verbatim:


DATE:        24/12/97
Coram:       M.O. Momba, DM
c/c:         Ayoob
Pros:      I pray to substitute the charge.
FRESH CHARGE READ TO THE ACCUSED WHO ARE ASKED TO PLEAD:

1st Accused:       It is not true

2nd Accused:       It is not true
Court:       Entered as P.N.G. (Plea of Not guilty)
SGD: ---
Pros:          I pray for mention date.
Order:         Mention 26/1/98
               BAIL TERMS EXTENDED.
SGD: ---


        The proceedings of the trial court on the 24/12/97 clearly show that the
charge of robbery with violence c/s 285 and 286 was substituted and the
appellant pleaded not guilty to said charge. We thus find no merit in ground 2
of the appeal.


        The question is whether the evidence adduced at the trial supports the
charge of robbery with violence.


        THE   LEARNED   STATE ATTORNEY   SUBMITTED THAT ON THE FACTS ON RECORD AND THE

EVIDENCE ADDUCED AT THE TRIAL, THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THE OFFENCE

OF ROBBERY WITH VIOLENCE C/S     285   AND   286   OF THE   PENAL CODE. SHE   WAS OF THE VIEW

THAT THE EVIDENCE ESTABLISHED THE LESSER OFFENCE OF ASSAULT CAUSING ACTUAL BODILY

HARM C/S   241 OF THE PENAL CODE.


        We find nothing on the record to fault the findings of the trial court on the
credibility of the prosecution witnesses, more so because we did not have the
advantage of seeing and assessing the credibility of the witnesses. We are clear
in our minds, however, that from the testimony of PW3 Barawa Andrea, the
supervisor at Small Garden Bar, there was a fracas involving PW1, PW2, the
appellant and his co-suspects. PW1 reported to the police that Shs. 257,260/=
was seized from his pocket.


      Under the circumstances, we are satisfied that the appellant and his
co-suspects who are at large attacked the complainant and seized from him Sh.
257,260/=. In that regard, the appellant was rightly convicted of robbery with
violence. The learned Judge properly imposed the sentence of 30 years
imprisonment on the appellant.


     We accordingly uphold the conviction, sentence and compensation order.
     The appeal is accordingly dismissed.



     DATED at DAR ES SALAAM this 29th day of August, 2005.



                                   E.N. MUNUO
                               JUSTICE OF APPEAL


                                  H.R. NSEKELA
                               JUSTICE OF APPEAL

                                   J.H. MSOFFE
                               JUSTICE OF APPEAL



     I certify that this is a true copy of the original.
    ( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR
                   IN THE COURT OF APPEAL OF TANZANIA
                            AT DAR ES SALAAM

                       CRIMINAL APPEAL NO. 39 OF 2002

  HIJA UWESU……………………………………………………. APPELLANT
VERSUS
THE REPUBLIC………………………………………………. RESPONDENT

              (Appeal from the decision of the High Court
of Tanzania at Dar es Salaam)
                                        (Luanda, J.)

                      dated the 20th day of August, 2001
                                      IN
                    H/Court Criminal Appeal No. 28 of 1999
                                  BETWEEN
   The Republic……………………………………………………. Prosecutor
                                          Versus
   Hija Uwesu…………………………………………………………. Accused
                                        -----------
                         In Court this 29th day of August, 2005

Before:    The Honourable Madame Justice E.N. Munuo, Justice of
Apepal
            The Honourable Mr. Justice H.R. Nsekela, Justice of Appeal
 And        The Honourable Mr. Justice J.H. Msoffe, Justice of Appeal
                                              ------

        THIS APPEAL coming for hearing on 19th day of August, 2005 in the presence of the
appellant AND UPON HEARING the Appellant in person and Mrs. Kabisa, State Attorney for the
Respondent/Republic when it was ordered that the appeal do stand for judgment;

       AND UPON the same coming for judgment this day:-

      IT IS ORDERED that the appeal be and is hereby dismissed – conviction,
sentence and compensation order are uphold.

       Dated this 29th day of August, 2005.

       Extracted on the 29th day of August, 2005.
                          ( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR

								
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