19700810 TZHC Dar es salaam2

IN TUE HIGH COURT OF TANAIIIA At Bar es Salaam Criminal Appeal No. 350 of 1970 (Original Criminal Case No. 363 of 1969 of the District Court of Lindi District at Lindi). Del ores- .E.N.E1ema, Esq., - Resident Magistrate DUSTUN IZA ...1.,.....AP?ELLANT versus THE REPUBLIC . . RE3PONDENT Charge:- 1st Count: Doing in possession of house breaiing instruments. 2nd Count $ Burg]. ary contrary to sections 298 (o) and 294 (1) of the Penal Code*

JUDGMERIT AK3ME 9 Ag.

3. This is an appeal by Bustun Isea against conviction for Being in possession of hour3e-brsald.ng instruments and burglary., and a substantive term of imprisonment for two yearn# coip1ed with the u.ua1 twenty-four strokes. With respect I am surprised the Repiblic was unable to support the conviction, The learned resident magistrate wrote a careful and well composed judgment in which he opressed appreciation of the fact that the evidence aL:ainst the appellant was merely circumstantial and, h av in done so, he was nevertheless satisfied that the appellant was among the persons who went to Abdallah Ngulipa's house at night on the 11th November, 1969 and that the fresh wound the appellant was later found with was the wound inflicted by Ngulipa when be disturbed the burglars. There was prosecution evidence which the learned magistrate accepted that at about 1 p.mo on the material day Ngulipa heard peope talking outside his house, one telling the ether to hold the crow-bar firmly. Ngulipa came out of his bed room armed with a panga and when he reached the bamboo door he had shut on retiring to bed, he found somebody already in the house. He cut him on his arm with the panga and the man ran away. Ngulipa raised the alarm and when neighbours came they found that whoever had been there had left a torch, a pair of sandal and a crow-bar, The same night a concubine of the appellant awoke

the appellant's step father and informed him that the appellant had been injured. The step-father lass akundungu saw the appellant and found his arm bleeding. He asked the appellant what had happened but the appellant offered no explanation. The following day he hnd his concubine fled from the village, This was after a cell-leader Jacob Elias, P113 had asked the appellant he got the injury on the right arm and the appellant had replied that it was none of the cell-leader 1 s business. On the 14th November, 1969, the appellant went to Nd.anda Hospta1 for treatment and was arrested there on the 22nd November, 1969 whore he was attending as an out-patient, The appellant told the court that he had fallen off a bicycle on the 21st November 1 1969 and pieces of a bottle he was carryinc had out him. He also added that be left the village as early as the 21st October, 1969 to go to Ndanda Hospital whore his concubine was admitted. The learned resident magistrate weighed the evidence and came to the conclusion, after sound reasoning, that the appellant's alibi had been Gffectiveiy rebutted by the prosecution evidence and that the circumstantial evidence on the record was enough to justify conviction. I agree with him. Even a conviction based on circumstantial evidence does not require absolute certathity which would he practically impossible in the ordinary oondu.c't of human affairs.

It is enough if, taken as a whole, the inculpatory aspects of such circumstantial ovidonce are beyond reasonable doubt incapable of explanation upon ny other hypothesii but that of the accused person's guilt. 0•00 2- The &oótor who had treatcd the patient was not oailed, for if he had been he would have expressed an opinion as to what could have caused the wound. Such an opinion would have strengthened the prosecution's case, bat iii view of the eiiidence on the record I am satisfied that its absence was not fatal. I dismiss the appeal against both conviction and sentence. Delivered in Court at Dar es Salarn this 10th day of August, 1970. (L.M. MAME) ACTING J1JJ)a.