19740911 TZHC Arusha 1

- 0 . . 'c__• IN THE HIGH COURT OF TANZANIA AT ARUSHA - APPELLATE JURISDCTION HIGH COURT CRIMINAL ,,APPEAL 1400 90 OF . 1974 (C/F' CR0 APP0 NO0 91/74) ORIGINAL CRIMINAL CASE ND0 943 OF 1973 OF THE.DISTRICT COURT OF TANGA DISTRICT AT TANGA Before T0M.I Ngitani Esq0 0000 ,,.. 000000•000 00000District Magistrate 1. RASHIDI SAIDI ---------- APPELLANtmS 2 • FADHILI HASSANI (Original Accused) - versus THE REPUBLIC - ----- --- - -------------- RESPONDENT (Original Prosecutor) CHARGE: Workshop breaking and Stealing C/S 296 and 265 of the Penal Code0 JUDGMENT Makame, J. There was apparently some confusion in the Admission Note by my learned brother0 The two appellants are indeed RASHIDI SAIDI and FADHILI HASANI and they were charged along with ADAM LUCAS who was Accused 1at the /the trial and who is one/who has not appealed to this court0 It was Adam Lucas who was said to have owned that the things found in a motor vehicle, two tahles and a chair-frame,'were' his. Sometime after mid-night on the lstf2nd December, 1973 at Mu,hez PW 3 JUMMANNE SALUM MI3EGA, a Police Sub-inspector, and other Policemen, grew suspicious of a Government motor vehicle, GTD .21, which was being driven along the road to Tana. They 'gave chase and caught Up with it at Ngomeni. The three 'accused and the driver were fofld in the motor vehicle and when it was checked it was found to be carrying the articles already mentioned0 The witness, Mbega, was clear that the accused Adam Lucas said that the things were his0 In this Mbega was supported by the driver as'e)Ts ohráü'si'd' persons even though Lucas managed to establish in court that in his statement to the Police the driver, P.W.5, did not say that the accused Lucas said that the things were his The learned istric.t.-N.agistr-a.te..-who.-tried the case was satisfied that the accused Lucas did say so, axd. I could: discern nothing that would move me to hold •a different view. The accused Lucas succeeded in charring his own defence by calling :the.two women, his wife andhi' sister-in-law, who contradicted each other, effectively to show that Lucas's claim was untrue that he had been with the driver the previous day in Tanga and on whom he tried to throw the blame0 Mr.: Mwipopo for the Republicquite rightly in my view s refrained from supporting the convictions of these present two appellants. . Rashidi Saidi might have falsely alleged that he boarded the vehicle With Lucas at Segera, and Fadhili Hassani'.s assertion that when he got in at Muhezh found the two accused already In, might hare been false, but that was about the only evidence agaihst these accused pers'on. All along otherwise the accused Lucas claimed the attiIes as his own, things he said he had carried from Moshi, and one cannot make a conclusive finding adverse to the other two .acctised in 'the, circumstances - . There being with Lucas who had the things, at that unholy hour of th.e night,. may suggest. that their 'hands were not particularly clean, but that is not enough reas:onably to lead to the coiclusion that these accused too participated in the crimea I respectfully agree with the learned State. Attorney that the convictions of Rashidi Saidi; and Fadhili Hassani re not supportable0 Accordingly I quash their c4nvictions and 'set aside the sentences imposed. ónthem. . . . . . . 1. —2- If they are not in custody for something else lawful .they should forthwith be released and set free. As the things which featured in the case were proved to have been stolen from a shop .amt.ter. fi hursear1.i ,tthe conclusion that Lucas broke into the shop and stole them was inevitable. appellant absent, unrepresented. Mr. Mwipopo for the Republic. 1' Delivered in open Court at Arusha 11th of September, 1974. L.M. MAKANE, J U D G E /Kim athi