Salehe Selemani and Anor. v. R. Crim. App. 19 and 21-Dodoma-71; 16/12/71; Mzavas, J.

 

Salehe Selemani and Anor. v. R. Crim. App. 19 and 21-Dodoma-71; 16/12/71; Mzavas, J.

The complainant, a school boy aged about 14 years, was sent by his father to a nearly shop to buy sugar. He was given one 100/- Shilling not. On arrival at the shop he handed the money to the owner of the shop Z and asked for sugar worth Shs. 4/- As he was handing the money to Z the two accuseds arrived at the shop and asked to buy cigarettes. Soon after Z found that he did not have enough change or the shillings 100/-note and returned the money to the complainant who left the shop followed by the accused.  It was established that the second accused grabbed the complainant, put his hand in his trousers pocket and took the Shs. 100/- note and both accuseds took to their heels. The complaint reported to the police and investigations led to the arrest of the accuseds and to their heels. The complainant reported to the police and investigations led to the arrest of the accuseds and to their being charged with the offence of robbery with violence c/ss 285 and 286 of the Penal Code. The first accused pleaded that he saw no point of putting up a defence because the complainant did not mention him as one of the robbers. The second accused gave his defence on oath and denied committing the offence.

            Held: (1) “The learned state attorney though admitting that there was little direct evidence implicating the first accused with the offence he argued that the first accused under the doctrine of common intention was equally guilty of the offence of robbery with violence. He, in support of his argument referred the court to the decision by Bramble J. in Juma Kurasi vs. R. (1969) H.C.D. Case No. 72. I agree with the learned counsel that the facts in Juma’s case clearly disclosed common intention but, with due respect to the learned state attorney, it cannot be so said in the present case. In this case there was, I agree with the Republic, evidence that both appellants were seen at the shop when the complainant was there with his Shs. 100/= note. Equally it is clear that both appellants were seen later by the complainant as he was going home. From the evidence of the complainant himself he did not mention the first appellant as having taken part in the robbery. He from the evidence remained completely passive in so far as the robbery is concerned although he also ran away after the second appellant had grabbed and robbed the complainant …. It is settled law that where two or more persons are charged with an offence, the prosecution has to prove the actual guilt of each accused or alternatively the prosecution must prove that the accused persons were acting in pursuance of a common purpose when one of them committed the alleged offence…. As it was held in Wanjiro d/o Malerio and Another vs. R. (1955) 22E.A.C.A. 521, for the doctrine of common intention to apply. ‘It must be shown that an

 Accused person shared with the actual perpetrators of the crime a specific unlawfully purpose which led to the commission of the offence charged.’ There is no evidence what-so-ever in this case showing that the first accused shared with the second accused who was the actual perpetrator of the crime, a specific unlawful purpose which led to the commission of the offence of robbery with violence. For the above reasons it would, in my view, be unsafe to support the conviction in so far as the first accused is concerned.” (2) “As for the second accused I am fully satisfied and I agree with the Republic that there was ample evidence in support of the conviction.”