19730319 TZHC Mwanza2

IN Ti' iIG C'J'LT OFTN I Al A"ILATT JURIDICf ION HIGd COU'T CRIEIN.L A' 1 5'L NO. 107 OF 1972. (Oriin.1 Ctimihal:-C-iso-jo, 1316 of 1971 of the Dist ict Coiut of •.Mnza. Dstrict a t Mazñza Before T.0 N. !Jlanuo Esqj Rosident -J.CKS0N BUKL0a'. ; . • o ............. . . . ...... . . .... , o •- •iê A'LLANT (Original ........... versus TRZ iUBLIC. •t .... . .. . .. ... R''S'ODFNT (0igina1 prosecutor) CHAtG':... Thoft.by sorvent contrary to sections 271 nd 265. .of:tho Penal Code Ca'-. 16. - :.. . .: .. fl—Kindy, J. .c1on Buki wasonqicted of by servant ontrryb ócfin 27I.nd..T265 of the Pn,1 Cod c4 l6 Ho wssentóod One rer. 11a. aio, , a ldaiht cnviti.ohnd sentno , . •. Th '- 01Iark- was omniojed bj Mw'nza Dveonrnent crieme es a :,tchmafi.H Phisor nisati.n boiht 10 bag& ofbmdnt, ndk3'-tbhom ixit'r Four of' tia tnbs were ased in'naki .ng bicks. The a'-el1ant, with another watchrnn,.reorte'l dutr1t 6.rn"on.the r3lvant lay a1tnouh they guerdd sa'-arate reints. On .-tha.following mxi -uf abOut -8-. in.j the mniñg bgs of cbthth+ w3ro found missing. . A search around the nramises, revealed that the wire f3nce has been unliftad at one noint and a large ho1 was mdo. It was a11e.e.1 that the whole was sufficiently large to admit objcts. And near this hie an axe was found (Txhibit .). It was alleged that this axe was entrusted to t ae arnellunt for his use in his duty as a watchman,. Theec11n a.imit -ted this but he contended .that:i:t missed from iim since 8 '.m. on tne nr3vioa evening and that he did not knoz where it hd gone to. Ste'h3n Hamisd who'vs aco—accused in tnis case, was seen locking nis house during the morning nd disa'-o.ar. His house ws near .tne '-'r3mises of Mwenza Develonment Scheme. However, later on, his house was searched, in his absence, and some 6 bags of cement were found. It was alleged that they be belonged to Mwanz.a Devo1oment Scheme, but tiij learned Resident Magistr te found that they were not iaentif ied ..4j be those of Mwanza Deve1oment Scheme. Hamisi alleged t1t the ba's had been brought to him by t'±e arneIlant t about 8 m. on the 12t1i of Noveiibai, i971t which •s the alleged day of theft. The learned trial magistrate found the .aellent guilty of theft by servant. She relied, firstly, on tno axe found at the alleged ononing in the wire fence. Admittedly, tne annellent's conduct was sasnicious. He did not renor -t the loss of the axe to anybody until after its recovery. Nevertheless, this evidence, anart from raisin susnicious, is of no value. It remains nossiblG that the axe could huve bean -L ken there by enybiy else without his (annellnt's) knowledge. Although .a:abur, the second wratchmen,was guarding the gate, it was nossible for him, or anybody who could gain entrance in tne nremises, to take the axe .iithout the knowledge of the.mnelliant. Therefore, the finding of the cxc, where it was p is of no .evi•IontiaI vilue beyond raising sus'ician. Secondly, the learned Resident Nagistrato reli3d on the ovidence of a co—accused the co—accused alleged that the .'-el1ant had r,ersaadod nim to keen the 6 bags for him, and yet susnicio:,isly locked his house, refused to be so erc.h.ed, and went awr, wnan ha sew the civilian search arty a'nroach his huse. Cia any., threfora, nis evidence could not be r cli ad on. •. . . ... . . . •. . . . . /2. His conduct was contr iryto tht of on innocent rocaivor althgh the -tril court found nirn so. Bsids -tji t, as h was an accom-lice, hiidbncoaedborobraUon, as thore was a ge.at tom'tation for nim to snift the blame on to netiier ftor tee 6 bs of cement had been found in his house. He saii th-t 3 witness wororesent when tha fdth logs; but two of the all w itnessos'do nied having boon resant as alleged Only one agreed that no hod seen the e'r-ellant deliver the allegod cement It scorns to me tha -t the defence of tee co—accused, to tha, extent itsoaght o steblilelivry by blaCroliant, s unraiiible. If witnessas were -resent, as the co—accused, himself said, then I find it difficult to understand, why two of them totally denied knowlede of the delivery and only one of tharn..agr.oed. with th co—accused. Surely, if they were all nrsent than they snauld have testified in the same way. Tno an'-)ellant hadall along denied delivering the alleged 6 bags. In thacircumst.nces , with duo resnect to the learned ResidonMai'str-ete, it was niost unsafe to acco't such evidence against the an'ellant. And it is clear to me that even if the aellant had been the one who delivered the begs to the co—accused, the conviction of the a'-ellant cannot stand in the light of the finding of the learned Resident Magistrate that th; six bags were not identified to be those stolen frm tle. riromisas of Mwanz0 evelonent Scheme and tho 'roerty of the 5 me orisat ion, For these reasons, I am unable to agree with the opiniop of the, learned State Attorney Mr. Mbilinyi, who arue:5, in suort of the conviction, that the conviction can be w-'>held. A.s a result, the conviction is quashed and the sehtonce set aside. The a'ellon -G has •a4redy been released boforb his a'ieel could ba herd after ho had comnLetod serving the sebtance of one year. Delivered in court, at Mvjanza, an the 19th day of March,l973 - Mwan,za Z. N. •1—indy). 19th March, 1973 - J1JDG9. Aellant absent. - -,Mr-. .?. Ntabaye, S tat3 Attorney for Reubli'c Rs'ondenL • t •- I - -