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I CO4jT Q IN THE HIGH COURT OF TPNZJNIA 18 SEP 19B0 APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 32 OF 1979 ORIGINAL CRIMINAL CASE NO., 742 OF 1977 OF THE DISTRICT COURT OF ARUSHA DISTRICT AT ARUSHA BEFORE: E. N. MUNU (MRS)ESq.,'ReSieflt Magistrate B 7263 P.C. SAIDI APPELLANT (original Accused) versus THE REPUDLIC 0000 6o000000oo0000000"° RE3PC)NDEPT (original prbecuter) JUD MENT MAGANGA, J. The appellant was chargeJ with theft by :uhlic servant n*der the Penal Code end in the alternative he was charged with taking a motor vehicle without owner's consent under the Road Traffic Act. He was convicted of theft by public servant0 The appellant was a police driver in Arusha•a n 15th October 1977 he drove a police lancirover with Registration No0 GT 9521 from Arusha to Kenya border and the following day i.e. 16/10/77 he reported at Namanqa police post that he had been kidnapped and forced to drive the vehicle to the Kenya border where his kidnappers robbed him of the vehicle. The learned trial magIstrate con4 icted the appellant on the basis of the evidence of p.,W.9, one Godfrey Maura, who testified that on 17th Octobr 1977 while in a shop some 17 mile into Kenya from the Tanzanian bbrcier he saw a Tanzanian .'Jeshit landrovar with three occtipants, one of whom was dressed in a green police uniform0 The three were set upon by a grou of Knyans who assaulted them and robbed then of six elephant tusks. The Kenyans drove the landrover away and he reported the incident to Namanga police statlbn the following day. In convicting the appetlant the learned trial magistrate reasoned thus: 'fl3 Finds the 1c1n.'n at nun noiht defence e- riir* /accuscd plcad'- dby the/ImprohaiDle and incredible. P.W.9 observed that the three Tanzanians disembarked from the landrovor and proceeded to ask for cigarttes at the shop.' Had there been a kidnap the accused wou16 have seized the opportunity to raise an alarm and the crowd that ended up assaulting ther as iritruders could have Intervened or arrest4d the two Somalis. 1• —/2 ...... the -