19760409 TZHC Tabora

1.2 410 IN PHE HI11 COtT CF Th1ZANI4 A A?LLA'E JUII$aItTCN . Vl4abøra eist y ) - HGM CCUrT C1IINL A? L N *1/7 CIGINAL CtThINt4., CASE NC. 466 CF 1975 CF TH1 DISTRICT Ci.1T (F NZEGA DIS1RICT T • . NZEGA..-: BEFCRE: E. t. KWILAflh,ESQ , , D'MhGITRATE. - (Criginal Accused) VersuS TUE nEPUBLIC . . . . , ,,,. . . it , 0 . . . . . .. .. .. . . . . . RESA?CNDENT (Lriginal irosecutor) CHAk: Stealing by vant els 265 and 271 of the en1 1Code Vol. I Cap. j4 of the Laws. . .... .., - . - ,., MAk1(iANC ,J: The appellant ABPALLAH IKUJI was cohVictéd in tije district ourt of stoalthg by-serirant c.oxitraryto SeCtibi8 2b5 and 271 the ?e.näi:ode... Three 6 the rti , ;:- er8 6n,9 who were tried jointly with him , weeo 46qu3iitbd*-, H-e h&s1odge.d -an appeã1. freir-.the dohlkittibn •ajd . the sentence of. serch .yoaz imprisonment.. The faøts were not iii b6tious dispute. The bone. of conte ntion was whether giveti those facts it was inevitale to arrie v at the conclsion u that the appellant was guilty of the offence. _- The lêärned 1agistt-te held that the facts gufficed to prove his guiit$ .The giOdüns set but in this appeal are directed against .th6tc6nc1uioh. . The charge a1leged that à8 a NATEX stOre keeper-at Nzéga, the appelidnt tóle .Thrée hales of -cloth materia]i wojt1i - Shs. 1467o/ the prOpeity of his employer. It was in &ridence and ther4 e waS no denyikrg thct. the dS Were missing

frcth the-' - .. - NATEX stOre, 8n 2/12/7'..and'the - dnly reasonable irferencé was that they were stolen from the pemisés. 'It was common grund that the appellant waskeeping the keys for the store during workIng h6ür5 and.P.W.3 Anthony ?4bwäna. 1 the N6nagr4 during the rest of tho time. In the circumstances of this case the learned gistate r was right iii observing that theBe two péoirs wkdid be the oily , suspects in the theft. With that, the •1ernäd ag±Strate proceeded to find in effect that .tere must have be en a consipiracy between the two men to cömmt this offence* Cn behalf of the appellant Nre Ptë1 has attacked that finding. He has submit ted that there 40 was no compelling evidence to ju8tify that finding. He has H argued that the evidence showed itio more than that there was such a possibility just as itshowed no more than that the goods might have been stolen by either'enè or the other acting independently. Mr. Ntabaye for the Republic has, in complete I agreement with Mr. ?atel, expressed similar: views. He has said that on the evidence available before the court it was impossib1e or at least unsafe to fix any of the two persons with responsibility. With due respect, I think there is cc:nsiclerahle merit in the common riewsof the-two. Counsel. It is ttite to observe that the prosecution carried the burden • prove the charge against the appellant. Their burden was

to piJe.'deyond reasonable doubt that it was none pthit1an the appellant who stole tbo gbod. n my own evaluation, I think that the evie.el, e fell short of the requisite proof. •Ithhk.that. it (lid not excludf the reasb.nable pssihility of being the actual • thief. As shwn, he had custody of the keys for the store á'ter' wcrking hours and indeed it can'Ue p1asibly • argued that most probably he had more opportunity than the app ilant. I would agree with Mr. Pate tht.any contention t.ha ther was a conspiracy between thO ppellant and'..3 can on be founded n mere suspicion. But suspicion however grave is not enough to.spport a-,convictio. .'For t,hese reasons I feel that the learned Magistrate errec in his COnClUSiOn. In the event, I will not say much about the sentence. The minimum sentence for the otence was fiv,years.ifpprispIment. The learned Magistate id not c any rcado for imosixcg a sentence which'surpssed that tern and in my opinidnt1ere as no good reason for him o do so. Th -appeal i. allbwed and tl4e"c(.ñvlctiOn quashed. Phe' 4 entence and the crd - r fcrcomkensat 1 n are st asie and the Ia p e ll ant 115 tobe discharge fxor risn'for1h.th unless he islawfully held oti anc-ther r1atter. • Dliverëd..: ,•. : ", LH.'f'' .. ':c Thbora, D P. M4i?IGAN( I '4 JUDEO 9t1f april, 1976 / 'Mr. ttel for the Appellant. Mr. Ntahaye for the Respondent. V. (I 4 -