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- '-- • -. II\i THE HIGh COURT OF TiNZNIJ liT iRUSHIi JPPELLliTE JURI SDI CTI ON HI GH COURT CRIMINJi APPEAL NO. 272 OF 1974 ORI GIN AL CRIMINAL CASE NO. 461 OF 1973 OF THE DISTRICT COURT OF SAME DISTRICT AT SAME BEFORE:- S. N. FUNDIK IRA, Esq., District Magistrate IGNASOMARI ...............................APFEIjLANT (Original Accused) versus THE REPUBLIC ............................... RESPONDENT (Original Prosecutor) JUDGMENT JONATI-IAN, J The appellant, IGNAS ORI, was convicted of house breaking and stealing, c/es. 294(1) and 265 of the Penal Code. He was given the minimum sentence. The complainant (F.w.i) who would appear to have been a memher of an arbitration trihul found his house having been broken into and a bicycle stolen. This was an exhibit in arbitration proceedings before that tribunaL. It is said the appellant was connected with the bicycle., but this was hearsay. The biQycle was later traced to the possession of one RABIA who, however., was not called as a witness RABIA is then said to have explained that he had received th bicycle for safe custody from ELIAS SAMERUME, who was the appellant's co-accused in the lower court, but again this was hearsay. Upon such evidence the appellant was asked to enter defence.. The prosecution case was altogether very unsatisfactory, and did not entitle the court to require the appellant to reply iefence.. It was a simple case and it should have presented no difficulties to the Police to investigate in order to present a coherent and sufficient evidence. Such evidence ought to have shown, among other things, the true owner of the bicycle, how it came into RJhBIA's possession and what accounts, if any, the appellant and the co-accused had made. It was n sufficient to project these things merely on hearsay. The appellant in his defence, while denying the offence admitted to have given a bicycle to the coaccused.. The co-accused supported this when he said the appellaht had asked him to hand over his bicycle to RLBIJ.. It was the defence case that the appellant had given 'a" bicycle to the co-accused, but it is not clear if that was the sarne bicycle as that found in RABIA's possession. This doubt could and should have been removed, and in view of the very poor prosecution evidence 9 I cannot say that the appellant was saying that was the bicycle the complainant was saying had been in his custody. - The appellant may be luck, but having regard to the foregoing I cannot but quash the- convictions end set aside the sentence. - -------------------- -- ------- , - . ••. . . .- . . . . . . /2 . r ell —2- It is ordered tI-in appcI1:nt be re1esed from custody. if there ro no other lawful grounds for detaining him1 (i M J ONTHIJ) /IVITPMI ___