19741023 TZHC Arusha

IN THE NIGH COURT OF TANZANIA .IT jU S Hk TT - APFTLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 93 OF 1974 ORIGINAL CR1: INAL CASE NO. 647 OF 1973 OF TR DISTRICT COURT OF TAP C-A DISTRICT AT TAN GA BEFORE:- A.H.T. NYANIBO (MISS), Resident Maistrate SUNGU s/o iiJ ................ . ............ .APPELLANT (Original Accud) versus THE REPUBLIC ... . . RESPONDENT (Original Prosecutor) TTinrThT:m ONATHA.N, J The appellant and another were convicted on joint charges entering a dwelling housewth intent to commit a felony d steal±ng, respectively c/ss. 295 and 265 of the Penal Code. The other accused has not appealedi As rightly submitted by the learned state attorney, there was not sufficient evidence to support the conviction of the appellant. There was undisputed evidence that someone had entered the house of the complainant (P.W.2) and stolen his gun. Four or five days later P.W.I, a police constable, acting on information supplied to him interrogated the other accused. The latter admitted taking the oun and said ha had given it to the appellant. He duly took him to the appellant's house. The appellant upon being interrogated said the co-accused had-come to his house having the gun in his possession and had asked him for a loan of sbs.25/= which he said he would repay after s'ling the gun. It is not clear from the evidence if in fact he advanced him such loan, but it seems the appellant added H'at, ultimately, as he showed the co-accused the way to Lrohorohe saw him hide away the gun. The co-accused, { ording to the witness, then showed him where he had hidden tue gun. The co-accused in his evidence denied to have given the gun to the appellant and said tbat.when the appellant was asked by the police he took them to the bush where the gun was found hidden. The-appellant, for his part, said in evidence that the co-accused had come to his house on the thaterial day, apparently because there was a dance. He would, however, appear to say that he did not see him having a gun, and on this the three witnesses he called seem to support him. The co-accused appears to have been properly convicted, but not the appellant, the only evidence against whom was the repudiated statement of the co-accused that he had given him the gun, and the evidence of P.W.I, that the appellant had said he had seen the co-accused hide away the gun. The co-accused's statement apart from being repudiated, required corroboration as accomplice evidenc?. This was not forthcoming. .,"2 -2- As regards the evidence of the co-accusd hiding, away the gun, there was no evidence that he knew exactly where the gun was hidden or that he knew from where or the circumstances in which the co-accused had got it. The evidenàd was altogether insufficinet and the appellant should have been.acquitted. Accordgly, his conviction and sentence are set aside. Ed should be released if there are no other lawful grounds for detaining him. • Delivered in open Court at Lrisha this 23rd day of October, 1974.