19960823 TZHC Dodoma

IN' T!lE lUGII OOfftT OF '.T.1.ANZAI-UA .Li.T "'X)1)()1'1A .(~ BIUMIN.:ll,. lll'PEAL NO. 30 OF 1996 (Fro.~ the 1"9c-ision o! the 1n.~trict Court of Singida, at Singiia, in CrininaJ. Appeal MO. 167 of 1995) ... I"T)T)I J1JIVL-'\ •••••••••••••••••••• fiPPELL,\NT

VERSUS TIIE :i."lEJ?U:,JLIC ••••••••••••••• • • :::.JSPON1E!tiJ'Il JU-r:iGMENT KYAN:,0 1 J, This appeal is against the conviction of the appellant l::r;/ the -~ ·. 1)i.s;tr1ct Court o! Sin~id.a for the offences of storeb~e~:i.n,g ~i ~teali&e:. o/siJ .2.96fl} aa:i ~ P:.C.. Follo•wing the -0onviciri.an the appellant was jailed for fiv~ years. 'l1he particul2.rs of the offence charged. were that the appellM-t and othe~s ~harged with hin, but who were acquitted. by the trial eourt, On · 28/11/95 at about 5,30 or:i, at Mitunduruni Area, in Singida TOi·mship, broke into a store ani stole ·therefron six bags of line valued at Shs 9,000/-::;, the property of 1mastazia Masinie. It was alleged in evi-J.ence :)efore the trinl court that the alleged :)res.king ani theft were iiscoverei by .Junanne IIango (P'vvl.) vrho ,-,as a watcru"Jan at Mci.sinie' s house. PW. 1 testified that he was l1uarding ·the pre1:1ises a.$ fron the previous evening ani. at 5.30 an on 28/11/95 9 when .he went a.roun·i to cheelc, he founi that the store in whieh li:,1e ani __ ..,., other buil1il1g materials had -been kept ha•l been :)roken into. He foun-l that six bags of white line were r.1issinc; fror:1 the store. There was, howeve:r, ·a trail of the line which ,le1 up to a hc)USe within Mtuniuruni. Ile thel'I. went to the Police to report, j_t the Pclioc ':: c· t...:..__,n O. ~6J.6 'l/C]?l Si,las (PW• j,) 9

n/Corp~al Chn.yo m ·1 -:')/~.;:;:-:~.:>:..·al Gec-~::-:i . ::co detail erl to . PW. 3 tol·i the court o:f t.:d al t!-lr.!.-t they went to the house where thG line trail ;l,e,1. There they founi the appellen-::; ani his Dothor. 'l'hey askei if th~re was lino there but thG house ao.cupant.s ,;;oJ.i no. PW .3 .y-.l ~~lal.1.'S "'tocl·:tc,i. -be 00:1J:oh tho house. As they were 1.oinc so the appellant atteDpte1. to escape. Ee wo.s apprehcmie,1, however, a.YJ. l the search cantinue1.. It prove1 fruitless, i.e no lii.10 was founi in the house, I3ut the attenpt by the appell ::int, t.o escape strenGt;honc4. the search pa:r:ty 1 s su.spi.ciaas ae;ainst ~ , ani when they pressed. hiu he tol·'l theD that six bags ·of liDe hai been brought to hin that ;·.1ominc; by a Sango. Ile ( the appellant) took t...rier.i to the place ·,,,here tho sa.i 4. .SMGO li vd butt they cli i not see the ., person, Tue appellant allogoily then sai 1 he hai sol 1 the bags of lin e ' to Mana i?.ose at Mi tunrturuni. Ifo lei the::J to T-'Ia-::irt 14>,se's · .,.. pb,ce ani thore they founi ;{ose Kilawe 1-1ho :Jecn::1G the thiri accuse1 in the case. They were tol·i. that IVIa.i::ia Hose harl con0 to Moshi to atteni. a 3:eDin:ir.When they saii they were looking for stolen ba'.?,'S of line KilC1J:1e sai,1 they were there · an·'l that they ha 'l boen brouGht there by the appellant who hai. sol 1. the ·J to ~ . She

sai-1. she hai. ,le::vmiei. to be given f.reoeipt by 0 the appellant ani thc1t he k.1.·l not brought .an!? yet ani so she h1;1,d not paid for the bags. She calleri Francis :Sebastian (4th accu□ e1.) who she sn.i1 ha1. vouch.e1. for the gooi. quality of the li:.1e. They looke1 for the ten- houses cell lea1.er but he v1c:s not c..rouni. They got Abubak'"ir Kiji1a (PW2) in his place an'l he witnesse1. the search ett the pl2Nce. Sixbags of line were founi. as a result of the se~rch. rfue ~ppell3nt alleceily saii. he hai broueht the bags there with j]ashi~l_ Mauna(2ni accuse1). Ha,shB. f-'.huna, upon his apprehension, i.enie•:l p2Xticipating in carrying of the li;·.1e bags 1 Later the appellant 9 Ho.1.L11a, Zilawe ani Francis Sebn.stian were n.11 chargeci with the offences in this case. Al.::..'iox.natively Kilawe and Francis Sebastian were charge.,:l with receiving the bcies of li~.1e •/s 311(1) PC. As in i.icn.te1 s.l:;:-en,iy 9 211 but the appellant were acqui tte"l.. ?he ap:;;,cJ.l::nt thou ~:;refm:-ro,1 -~~us :'.;p..:,.--:.1 -t.::i thifJ court, Ee h.n1. -1cf0n:lc::rt hL1self by ,3tatin 0 .:i,s follo·.;s ·J;L:::inc tria.l. "I l-i-;0 2.t :Iitun"l_u·i"..mi 1 I reDeDber on 28/11/95 :-.:.t 2 •.00 p:-.1 I 1.r:1s roturninp, hu1Je · fron the 3 sai1 ~hey hai. suspicion o"9"er r:1y house. 'rhey ·li-'l. not tell :·.w ; ulnt they suspe.Otf'lrl, in the house~ They then con iucte•'l .'.),

search 9 but th•3Y iid not get what they were looking for. TJ.1ey 9 however 9 arre3tei. an i sent De to ;tr.-,. :;i,<-..cuse·.11 o hon,? llo.se oni. ar._oe-t~'.'I. hGr where tlw.y also arrcste.rl 4th accused too before seniing us both to the Police 8t::ttion. The lL1e was not foun 1. at ,--:iy hone. I 1i1. not sell either the liDe to the 3r1 accuse1 11 .. the appellant Un"ler ,cross-e.xaninr-J;ion by the Pu·i)lic Prosecutor /. · stn,te1 that he was at hone when the pol~ce officers nrrive1 to arresJ1iwu.s is, to be ...... , not€:1• in ~ontrai.iction to whd he otatei in his ovii.ence in-chief in which he sai1. he net the police officers on the way as he was re:t~n,ine I'-. ho□e fro::1 the central nark et. Je t.h'.1.t ':,S i Day 7 he continuei to state that the police officers were with P\.J. 1 when they went to his house. Ile sai-'l. it was the police officers who h:..1. the n2nes of the suspects they were looking fOF• IIe 1.eniei. tolling the police that he ha-:l Goli. the six bags of line to Mar.1a Hose. IIe sci i. it w;:i,s PH 1 who toli then th-:t.t the six bags of liue were at Mana l1o:Jo 1 ;.:;. =Ie -leniei. lmowing Sango. In his petition of ap~oal to this court the appellant sai1 he i.11 not wish to appea:r for th,; !."1G:.:-,,ring of his appeal. Ire -'l.i-1 :n.ot engaee an a1voeate either so only the Hepublic was represented - by nr:. !Cagaigai, learne1. State 11.ttornoy.

!Ie supportei the canviction of the appellant ani praye1 for 1.isnissal of the appeal. '.:Ji th respeet 1 I o,c;roe that the app2al is t1eri tlosG. There is a. string of happenings which link the appelle.nt fully to the offences ehnxgea,.First the trail of liae lei to his house fro□ the store which was broken into. Seeon-Uy as the police were see'..rching his :.:.n-:!. his nother' s house, he atteoptei to escape. Them he lei. the search partv to Mar.ia Hose ·fere where tYUly the bags of li:::e were foun 1.. Kilawe sai i they/ broucht there by the appell.31'.t • Ile ienies C'Jli says h,,;, iii not say to the Police that the line was at Mana Rose 1 s. Tfowever 9 apart froa the police PW 1 saii ::ono 1 s. :.I:l12 Jistrict Court -\vr:ts tl10:rGf~re fully . ~0.j,.:c·cilJ.c, ..., .:i~, . :i ·'nkin.~ in .:.llci ~VJ. ·--~- .\.11 tho ;__··.,,_:~o:i:: the appell3nt to the offences fully prov21. thG offences against hL1 nn,1 ·11... -. -~.i•• .- 4 The sentence inpo.so-'!. was -~ho ..d.ninun un 10r tho relevant law an-'l. I i · 1isniss the appellarit 1 s appeal to this court in its entirety. /f7_; '.,·, <: . ,-::'.'.?' '>/( . :.-: ., J ·' ·1 •./:t11.o /nu~'XJ· . -· '··-----······--- JU~E "1J"')()I-1A 23/8/1996 Mr. Kagaigai 9 State Attorney, for the ll.epublic Appell.snt- absent, ioes not wish to be present 0 Ju1g:-.1en t i.eli v erca.~