19760312 TZHC Arusha

• IN THE HIGH COURT OF TANZNIi LI AT hRTTR'A APPELLEi.TE JURISDICTION HIGH COURT C.IHINiL L.PPEL.L NO. 131 OF 1974 ORIGIL CRL..[INIL C2...SZ iTO. 385 OF 1973 OF THE DISTRICT COURT OF PR,L; DISTRICT AT S!JdE BEFORE: S.. N. FUIDIKiiU, Esq., District thgistrate AFD1iLLfliLMP.NIMUSSA ......... . ...... .....APPELLL.NT • : . (Original Accused) versus THE REPUBLIC ................... RESPONDENT (Original Prosecutor) JU'DG1EJTT JONATHAN 2 J. . The appellant and a;iothr, the younger brother of the complainant, were convicted of house breaking. and, stealing and given the ninimun sentence.. The facts are largely. undisputed.. The complainant locked up hisIiouso and lirocoeded on afari. While he was away his younger brother,: the first accused, cauc to his house accomlanied.by the appellant and not finding. the complainant they brok into 'th.e house, this in the presence of a neighbour (P.W.2), and took out a. bicycle belonging to the conp1ainant They i'od df'bn1y to betoppod a shor,.t distance away by a member of the Tanu Xouth League after being tijped dff.hy P.W.2.. The'were.. duly arrested. The..: bicycle neded some reai's to be done to it and it traispired that the comlainndt had previously asked the first accused to coc and take it for r3pire. The accused persons in their tdstiiionios ath.itted going to that house, breaking into it and taking the bicycle. They explained, howovó', th.t they 'bOkC into th1e hQuso so that the first accused could stay there over-nLght. I'ter they got in, hovcvor, the apo1lant decided that he should go back, so the first accused was cscortimg him to the bus stop when they were arrested. . ,.. -. The Republic on the facts is not supporting the convic -tionsi I respectfully agree that the accused were improperly convicted. For, not only are the facts as given by the prosecution witnesses corisistentwith an honest. intentiOn on the part of the accused peronr: when they broke in and tOok the bicycle, but alo the accused in their evidence raised a very .substaaitiai doubt that, initially, they .hu,d gone there to pay the conplaiiant a 'visit and that upon finding him to be away the ape11ant deáided to go back that sene evening: iehile the first accused decided to spend the night there. The evidence as a whole is in any case ixisufficiont for,.coriviction. A 000rdingiy ............... /2 I S L ) I J —2-- .1. - _1 ocordi1y, tho oppo1 is flow th coniciia and scnLoncc on th pc11a ot esido d it i ordcred • ho b-& re iGaod .forthvith. The first accucd has not.. ao1eö, bub -thc oircii st - nc roquiro. b aic conviction '-' .cdit, rctin' .uuad.or its powers of • • revision9 heroly sets ido his conviption.:nd ëntcii.eo. He, too, it is o.rdcrod, s.ioii1d 1OE: rc1eoscd forthwith.... J011T11i).'............ • • ____ • a. Jidnt doiierod in bpen.Cour.t at L.rusha this 12th day TLrch, 1976. (p • EFI. JOIULTILE ) MJ/HTpi.T • • JUDGE . . . •. :.