19730118 TZHC Arusha

IT THE HIGH COURT OF TAP ZAP IA at Arusha o Lppl1ate Jurisdiction. HI H C OUItT CRIMINAL APPEAL N C'. 350/72 OrigThal Criminal Case.NO. 26/72 Of the District Court of Pare District At Same • Before C. H. Msamati Esq., D.M. Sn BANI @ KnRIi s/o PESA . ...... .PPELLAPT versus THE REPtJBLI C .... •.. .. .. . . .•.•.••• RESPONDENT JUDGMENT Jonathan, AC. J. The appellant was convicted on a charge of hurlary and stealing contrary to sections. i294•(l) and 2.65 of the Penal Code and given sentences of imprisonment of 5 years and one year respectively. .. He vvs also ordered to pay compen- sätion. It is not dispute,d that on the night of 4th June, 1972 the conpiainant's house was broken into and several items consisting mainly of clothes stolen. There is no dispute either that, eiht. days or so later some of these items were foul-id among other things in the possession of one Gadi (P.w.3). According to this witness and PA.4 the things were brou.:ht to Gadi's house b, the appellant two or three days after the burglary. The witnesses claim the appellant was then Cdi's giest as the two had been good friends for a long time. Throunhout the trial it was the appellant's stand that he neither put the things in Gadi's house nor made the visit alleged by the two witnesses. In his petition he has asked that the evidence of these witnesses be scrutinised w.aintaining that they collaborated in lying against him. This is not without substance. .. There is one or two discreancies in the prosecution's case. Firstly, Godi said the- apellant came to his house on 7th June, 1972 at 10.00 a.rn. wh•ile P.h.4 said the date was 6th June an.d the time 10.00 p.m. There is also a little disagreement . as. to how long for the appellant stayed at Gadi's house. is regards Gadi the appellant states in the petition that he was shaky in the witness box. Again, there is reason to think that was so. Cross-examined by the a appellant the witness is recorded as saying at one stage W that he had first met the appellant in a remand prison, but he later rep1id to the appellant that he did not know how their friendship started. He also said that the appellant told him he would spend one night at his house and then proceed to his destination. One may be curious that while sojourning the appellant should have sought shelter so early in the day while there is little explanation for the appellant's disappearance without taking the things with him. The evidence of P.V.4 was itself somewhat inconvincing. It seems that he was at Gadi's house both at the time of the appellant's arrival and at the time of his departure. I 7 o not see why, he stayed on at Gadi's house that long. It is not without interest also that he should have been present when the Police arrived at Gadi's house. . . . . . 12 -- •-..- -----------••-. -2- In hijudgmerit thelearnd Distri.bt Magistrate noted that the appellant had faild,t show why F.e.3 and P.W.4 should have 1ie.d., against him espeôiall as the former was the appellant's friend. P.A.3 may have testified truthfully butthere certainly wasreason for him to lie 1 namely to exculpate himself from the damning presence in his house of the stolen things. It was also a misirction that the appellant said be was known to Gai for thë record bears out the contrary to have been the paso. It is pertinent to point out also that at the close of; the Prosecution's Case the appellant is recorded as stating he. had no confidence (sic) in the trial magistrate as he had convicted him for another offence only )ne week previously. As the me:istrate properly noted that did not preclude him from hearing the case, and in any event the objection should have been raised at the outset. However, in view of the unsatisfactory features- I have attempted to show in the prosecution's case, I em uiable to say that the trial magistrate's decision was iot influenced by the previous conviction he had' returned against the appellant. All considered, I find it unsafe to uphold the conviction, and it is accordin?'ly quashed and the sentenc.e thereon set aside together with the order for compenstion. The appellant should be set at liberty if he is not otherwise lawfully held. AhU SHA (P. U. Jonathan) 18/1/73 /cwm I