19940923 TZHC Dar es Salaam2

IN THE HIGH COURT OF TJJJZANIA AT SONGillA. APPELLATE JURISDICTION (PC) CRIMINAL APPEfi.L N0.21 OF 1993 ~ . ORIGINAL CRIMI1:1i1 Cl1.S8 N0.465 OF 199, OF THE DISTRICT COURT OF SONGEA DISTRICT AT SONGEA.· B~HE: H.J. I1WANK:ENJA Esq. DISTRICT MAGiSTRAT'.d1 ALLY MADUDU • • • • . • • · • • • • • ,fl • • • • • • • • • • Vrs: THE UNITED MPUBLIC ••••••••••••••• RESPONDENT JUDGMENT MKWAWA.1..-.:h 4:l'his matter had originated in the Mfaranyaki Primary Court,· Songea whereupon the instant appellant was unanimously acquitted of the offence of theH . . 21.L::r~.ry to section 265 of the Penal Code. On appeal to the District Coui·t , ·.:pen th ,::.oT'lplair.P..1"'.t' s insistence c the inst;:i.nt "'I';'.'li?lln.nt was convicted of the offence nnd sentenced to twenty (20) months' imprisonment. It is against this decidio.n that the appeal is now before this court against both conviction and sentence. The facts of the case as well established. in evidence is b briefly to the following effect. On September 8, 1993 five bags of maize crop and nineteen (19) empty bags (canvars) were stolen from the conplainant. (P.,W.1) HASSJJ~ MTIULA). It is also common ground that e. do,y prior t6 the theft (7/9/93) the appellant was seen near the complainant's house in rather suspicious circuriisiances. Further to that it is alleged that he wc..s heard expressing his concern about the o.bundo,nt avn.i.l '"'.'.1.Ui ty of mt1..i.:?,e and empty canva.rs bags. It was against this bo.ck ground that led to the appellant's arrest and subequent prosecution for the the theft of the complainant's stolen iteCTs. The trial prina.ry court upon evaluation of the recorded evidence ~cquitted the appellant for insufficiently of evidence. When the matter come up on n.ppen.l before the District Court of Songe~ the evidence of three witnesses was recorded by the District Court on its own motion. It is not ir.relevant to mention that there :i.s nothing on record to indicate o:t: suggest--why ::i.dditionc.1 e-ridence" C • was called for ~nd recordedo \ I_ • (i) There wc.s no naterinl to support o.nd justify the court's (District Court) act of taking additioncl evidence. (ii) There was no cogent evidence to establish the ~ppellruit's guilt. Iara• respectfully• in entire agreenent.with the argu.,11ents that were raised by both laaxned counsel inpugning the decision of the first appellate court. I also find it pertinent to nention that it ie only in exoe- ptione.l circunstn.nces tho.t an a.ppelJ~.+.c Jourt 1:1,:-,y e_:~~c:- +.a,ke r~~J.t.:ional.: , evidence itself or direct LL.u .l Jirer court to do so,, Such evidanoe will not be yJ.ken for the purposes of filing a gap in the prosecution case. It may only call such evidence tc elucidn.te evidence already in record. (See: !:!_..!!__SIIiASI (1936)3~.h.C.h. - 40 and~•~• Y~ (1945) 12 .illACTi 60) to mention just a. few) In the -instunt case there were no circunstan/!ea that warranted additiono1 evidcmce to be recorded. Besides, the conviotion wo.s bo.sed purely on j,)robability rc.th1=r th:m on.cogent evidence" \ In tha result, this c.ppeal must succeed 2.Ild .·.s accordingly c.sida. The appe11o.nt should be set c.t 1:i.berty :i.ru:1cdj_~·i:..e1y-, 'Un-lee~ .CJ.. · is otherwise 1 :>~.rfuJ 1y d6to.in,2d on sane other r;1c.tter. ·D::::IT.,IV.Jrl.ill:l n.t SONG.]}A this 23rd dn.y of September. 1994 in the presence of Nr. l'-'iwi:ngirc., counsel for the c.ppello.nt i:-nrl l~i1'.' ~ Munuo. Sto.te .i'.,ttorncy for the Uespondent/Ropublic. J~J• M:bfo.wa~ ,. ~)ldge. I c:~rt.!;y true copy of the original Jud©~ent. ! \.. '--"-~A \..~ . 9../(_.'>• \'f. -- DISTRICT REGISTR11R ,·