19741115 TZCA Dar es Salaam4

\ J CRIMINAL APPEALS NOSe 132 OF 1974 AND 133 OF 1974 Original Criminal Case Noo 154 of 19733 of the District Court of Dar es Salaam District at Maktaba before S~M. Lamky .(Mrs), Resident Magistrate lo ELIEZA HAULE) z,., JOSEPH NJOVU ) ~ 0 ................ o .. ■ .. o .... o_ ...... o o .... o . . . . . 0 o APPELLANTS versus THE REPUBLIC 0, 0 0 0 • 0 0 0 0 0 0 0 0 O fl O c, c, G e e O 9 0 0 o O o o O O O o O 0 RESPONDENT JUDGMENT SAIDI, CoJo These 2? appellants, Elieza Haule and Joseph Njovu 7 hereinafter to be referred as the 1st and 2nd appellant, respectively, we:ce ch2.rged and convicted by the District Court of Dar es Salaam sitting at Kisutu o..,,,Q-t-vvt) of the offence of stealing by s~vMlt c/s 273(b) of the Penal Code .. The prosecution alleged that the 1st and 2nd appellants o~ 19olo73 jointly stole shs.21,800/= cash belonging to Moez Sherali Haji, PoW ■ l, which were entrusted to them by Moe~ for the purpose of. buying cloths from the NATEX. From the facts it appears that Moez is a businessman a·c Mtwara. He had known the 2nd appellant at Mtwara where the later worked for the S.. T.. Co for over a year. He told the trial court that in 1972 he met him at Dar es Salaam at the Tanganyika Transport Co .. two to three times. On one occasion the 2nd appellant helped him to buy goods valued shs .. B,000/= at the NATEXo On 15.1.73 he came to Dar es Salaam with shs.,21,800/= to buy goods from the NATE~r.i and went to see the 2nd appellant again for assistance .. This time the 2nd appellant introduced him to the 1st appellant as an employee of NATEX .. The 1st appellant had a NATEX form bearing Moez's name and address together with sundry items of goods totalling 21, 750/:-:: .. It was agreed that they would take him to NATEX the following day" In the morning of 19.1.73 Moez and the 1st appellant left for the NATEX office at Nkhrumah Street,. After receiving the form and shs .. 21, BJJ/= outside the 1st appellant went inside the office bu·c never ~eturned. Moez went in to look for him in vain. He then went back to the 2nd appellant at the office of Tanganyika Transport Corporation.· Both men went . to NATEX to look for the 2nd appellant . without an-1 success and then reported the matter ·co Police,, app~llant with the 2nd appellant but could not trace himo On the following day they held ah identification parade in which Moez pic~ed the 1st appellant as the person he had handed over shs.21,80u/= after he was introduced to him by the 2nd appellant4 In the night I of 1901.,73 Sgt/Major Juma, PoW .. 6 1 searched the house of the 1st appellant. He recovered shs.1 7 500/== from an envelope and shsoll,800/= from the pocket of·a jacket. The f-Um of shs.2/45 was recovered from the 1st appellant._ On the spot a brother of the 1st appellant claimed that he had kept shsoSOO/= with 1st appellant. This sum was handed back to him there and then. ·The total recoveredfrorn the 1st appellant was theref~re shs.12,800/=. So far nothing was recovered from the 0nd appellanto He was suspected for 3 reasonso Firstly, Moez said he.was the person who introduced the 1st appellant to him. Secondly, Sgt .. /Major Juma discovered that·he had left for Songea 5 days after the report of the theft.was lodgedo Thirdly, Ibrahim Johale, P .. W.4, had reported that the 1st appellant had informed him at the Magomeni Police lock-up where both were detained how he and the 2nd appellant fooled the Indian and took shso 21,800/= from him which they divided amongs·t themselves., At his trial the 1st appellant stated on oath that the money found at his house belonged to him as he was a businessman running a butchery since 19660 He stated he was paid compensatior.. for his butchery by the D.. D.C .. He had also sold his beer store to Chang'ombe Consumers' Co-operative Society. He stated that from these two transactions he realised shs.T,S":JO/=o He claimed that the National Insurance Corporation paid him shs.3,500/= for jrinks stolen from another beer store .. These facts were not investigated but on examining the record in particular the evidence of Sgt .. /Major Jurna, it is clear that the 1st appellant did not disclose them to the police during the investigation. The 1st appellant was specifically asked by the investigating officer to explain how he had obtained the money. He only mentioned that he was a businessman and no more than· tha to I am satisfied that the evidence led by the prosecution established the char-_Je against him beyond reasonable doubt and I accordingly dismiss his appeal in its entirety• .• • • 3 As to the 2nd appellant tt appears there is strong suspicion against him but there is no clear evidence to connect himo I would allow his appeal, set aside the conviction and sentence and order his release unless lawfully held in other rna·i:tc.::o Delivered in Court at Dar es Salaam this 15th day of November, 1974. (Ao Saidi) CHIEF JUSTICE