19850626 TZHC Arusha

-JA-L iii THE :L.:-:•: coJ:r OF .'JJIZJiJ::A Ar JUGLL. JTLLJ' J:CCCiT ch::1..1IL'L i:i j.o. 102 çi99 cliG:ciL ca C '.iO .121/78 OF ThE DISThICT COURT 1.0ITDULI. - .. V=113 I A1TXZIcL VRS T:- ij:Ic JJ2L..'iTT. CLJA,J. The a?pel1a::t was jointly cha:god with Richard Sartwel -(ireinafter referred to as the cocondAbOsedbith stealing by servant c/o 271&25 Of the :enai code. They were both convicted and setenced to 3 yea::-s i:2riso::..eLt under the hiniiu: Sentencs Act. The a - pellant alone a-3pealod. The facts of the case were Sam?1O. The apeilant and the 2nd accused - rored at the State Travel Services Garage at ilgorongoro. The ape11tnt was ei::loyed as a Puncture Re'airer while the second accused was anechanic. On the 17.11.78 sron 1: ateru (P13) notnd that a differential and riator, both used, iore raissing from the garage. o ...reported to Captain Bob' Nasa the Lanager(P.'Il). As:rs at the main gate were detailed to searc.i pacs veic1ri for the ssiig sDares. .n the 13/11/78 a :.otcr vehicle in which the a - eiiant nd he 2nd ac-bused had ota:.ned a lift :ras stored at the gate. On being s rche:..aag in which a use:1 difftrential and use radiator were 'ond. The search 'ias conducted by Julius I::os:- a(P72). In his auinat±on i Chief Julius hosha caM that both accused told hi.. that the s:?ares belonged to tham an0 that they wore: going to sell. tnem. :owever when he - ras cross

ear1noci by tab 2nd accusca he statec. that he, the necoml accused tol h!-: that he had got the o - ares from a rela Lye and that he was going to sell them. 3ubsequéntly both accused :rere clarga2 after the cp.res wore icLe:..tdfdod by izron I. ateru(P3) . The identification was adaqueto bäcauce the differe:.tial was sa:d to have been rubbed on both siL.s while the radiator haclith i::cis broei. .......* -2- In defence both the ada and the second accused :.ade sworn state onto and had no ritneoes to call. The a - pellant in his evsoence statec. that he had got on the .otor vencle .'n.tnout any buggage and that when he .-ias asked about he spares he said that he :new nothing about thea. :-e however, said that the second accused ±3 the one who ciai::ed oirnerchip of the sareo and that he h had said that he ad,ot theni from a relative and was going to sell then. The - second accused did not cross e::arL±ne the artellant on tais sate::ent. Jn i:ic deience the 2nc accuse:. eniea any :nowlecge of the c?arec. He however couli not give ani reason why the a client and Julius i.:osha(P12) said that he had admitted to have had t: carec • These t'..ro -000 -ele had no grudges aginot nim The iccue before - he trial conrt was whether both the a:oel1ant and the 2nd accused wore jointly in roosession of. the spares. Due to the clear adsion by Julius hocha (PtT2) that the 2nd accused had told

hi: that he got the o:ares froa a relative and was going to sll them, then the defence of the a -Dellant could reasonably have been true, The arellant asa -e ncthre repaarer was not e;rectea to be !2andllng oucn s:?aros as dferentials aria raaiators. 3ocondly aftere cta;ea 16.hat it is t -io 2nd accisea vo naLltted oS3eCO1on, the 2na accusea ciic not cross e::anir.e 1.xn at all. i-md since the sares were in a bag the aiellant could riot have known arid what the 2nd accused was oarryig..---. the s'ares were not so heavy as to necessitate two ersoris to carry It was also significant that after the close of the defence case the 2nd accused abcbonced. He did nct aeDear on the date of judg:ent - :hici-± ::,as ol 9.4.1979 end had to be arrested and sentenced by 13,2.80. Ac demonstrated aboie the defence of the a:?ellarit could reasonably have been true and the learned trial magistrate ought to have acquitted him. accordingly quash the conviction and w9uld : nave orc!ereci that the aee1larit be set free only that I note t.iaat he must by now hae conle-teC his sentence. This ,ucigment should, however be brought to the notice of his employer the S.T.S. ilgorongoro. 4 L'.i.Chua - - Judge - 26.6.5 Judgment delivered in the -erecence of Mr.kagohe State Attorney. LJR/31.baruku . Judge _ L l .a.-ruta-u~a-C,