19730720 TZHC Arusha2

'- - ,. IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 22 OF 1972 ORIGINAL CRIMINAL CASE NO. 4 OF 1972 OF THE DISTRIGT COURT OF KILIMANJARO DISTRICT AT MOSHI Before J.E.C. MaCa.nche, Esq., Resident Magistràte ALIKADI s/a PELESJANI ............ ......APPELLANT (Original Accused) versus THE REPUBLIC........................:... RESFONrEIcT (Original Prosecutor) CHARGE: Conveying property suspected to have been stolen or unlaifully obtained and Corrupt transaction c/ss 312 of the Penal Code and 3(2) of the COrruption Act. JUDGMENT Bramble, J. The ape11ant was convicted on two counts of (a) Conveying property suspected to have been stolen or tnlawfully obtained c/s 312 of the Penal, Code and (2). Corrupt transaction c/s 3(2) of the Corruption Act. He Was sentenced to concurrent terms of six months and three years respectively. P.W.1 testified that while on duty with P.W.2 saw the appellant with a parcel rapped in acenient bag. He was suspicious and asked the appellant what he • was carrying. The appellant told him that he had • the paper for wrapping meat. On inspec'ti,ng the parcel the witness found two pieces of cloth and he arrested • the appellant... He took him to the place where he was supposed to buy. meat but the appellant bought • no meat.. :Ori the way to the appe'llant's house he said "Please eà4.eéme" and he banded the witness shs io/ and asked that he be fOrgiven. : The appellant 'attmpted to run away when F.W.l said that he was retaining the • note and was held. He was taken to his house but nothing was found. On the following day he was given a policeman to go to show Where he had bought the cloth but he cotld not find the. ;ereon.who sold it. P.W.2 supported. P.W.l expt that he said that.s.11 tha, , appellant said when handing the. shs lO/= not:e was "excuse the . .He did riot say what was the r'ply when P.W.l a ..ed why he was given the money. . . The appel1an's case 'vas that he had bought the two pieces of cloth from an Arab salesmap; that when the police first spoke to him .h.e told them that it was clothe he had in the parcel and that he was carrying it to a tailor and he was alowed to go. Retook the pieces of cloth to one Bonaventu:ra and arranged a price for making them up. When he Nas waiting to have his measure- ments taken the police totd him that they wanted to see the receipt for the cloth and he said that they were •at home. The polIce' went and searched his house' an found nothing. He gave them the two receipts but they w e r e not produced in court. He denied that he ever .,../2 -2- gave any money to F W 1 and claimed that he was spiting him because he was on bad terns with the brother-in-law of P.W.1. Bbnaventura was called as a witness and confirmed that the police took the appellant with the cloth at his place of business. .D.W.3 was present at the search and saw when the receipts were handed to F,WJ... Neither of these witnesses were cross-examined and there was nothing on record to throw doubt on their evidence. The learned magistrate disposed of the matters in a very summary.. way. He said - On 1st Count, accused does not deny ever being found with thesegoods.::The O*planation he gives of how he got to be in possession of them is verplaüsible. And indeed the sicerity of his contention is diluted by the fact that he • took to his heels when he was c.onfronted by the police. He was guilty conscious. And although the serial numbers of the shs io/= note were not recorded there and then I am satisfied from evidence of Sgt. Adam P.W.l and s/c Sgt. Iemnge, P.W.2. that accused pulled out a shs io/= and gave it to them so that they would excuse him. By asking for an excuse the accused knew that what he wasdoing was unlawful. I am satisfied the charge has been proved beyond reasonable doubt. Bythe nature of the defencethe whole back-ground of the prosecution was challenged.' It seems peculiar that the appellant would..attempt to run away immediately after offering a bribe and when all that the policeman said to him was that he would retain the money. The appellant denied that a bribe was offered or that he attempted to escape at any time. The learned magistrate gave no consideration whatever to the defence and there was a serious case of non-direction.The circumstances under which the appellant said thOt he was found in possession of the cloth were completely different from those related by the prosecution and he had witnesses to support him. I find That the failure to onsid the defence raised would lead to injuthtice. In asscing the whole evidence, as I am entitled to do on a first appeal I find that there is much room for doubt and the doubt must be given to the appellant. The Republic did not support. the convictond. I allow the appeals, quabh the confiction and set aside the sentences The appellant is •to immediately released: unless otherwise lawfully detain'3d. Delivered in Court at Arusha he 20th\ Jay of, July, 1973. . Appellant abent, urepresnted. \ Mr. DSouza fortheRepublc. (c . BRAM\LE) JUDGE.