19771020 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT r<··,.l(MA APPELLATE JURISDICTION CRIViINAL APPEAL NOo 148 OF_ 1977 OR}~G::i:NAL CRIMINAL CASE NQ.,, 8$ OF 1977 THE.RJ;:;PUBLIC versus SAMWEL . , . BINDE . CHARGE: Housr~ breaking c/s 294 (1) of the Penal code and stealing c/s 265 of -the Penal. Code o J. U D G M E N T ~ MW AKII3bTE~~,~ The uppellant was convicted of house-breaking and steulingo_.,. He was thereafter s,.:.11"t,,nced to· threi=~ ( 3) y2ars imprisonment ·.;.;. in respect of the - count of hous,," breaking - which was· order-:ed to run concurrently with a sentence of 1 ye0.r imprisonment irnposed tm the count of stealingo The pCcrticulars of the two offences a1leged that on th8 29th March 1977 J.i: abcut 9o00 hours - within the township, district and region of Sin,:icln · t Majengo area the appellant broke into the dwelling house of one Abdullah Mpwambwe and stole from therein some cloth,2s - valued at shso 412/::: the~ property of the said Abdallah Mpambweo It wns ih ·evidence th.1t Ashi Athuman (PWo4) was going to the toilet when she m,::t o.ppellant coming out of iL When ,she got in she saw a bundle of clothes lying. in.side th$~eo She got out to call back ap~ellant but appelLmt ignored. her calL She then summoned other people to the scene when i t Has decided to r<2port th,~ mat ::er to the police who arrested / ::1.ppellant o.nd subsequ~ntly charged him• with the two off<.~nces o The lower court convicted apI?ellant ·bee-a.use it was convinced that appellant must ht1Ve be·,n the one i~ho had dumped th•~ clothes in the lavatoryo Lib~ th:'.! lower court I believe PWo4 saw appellant come out of the lqvatory. I believe also that appellant saw the bundle in the lavatoryo But I h:;;:sit:21-b.~ to conclude that he must have be'..,n the on,~ who du{tped the bundle in tht;re. No one saw him take the burldle to the lavatory -- in fact he had e:;:irlLcr been seen in his room without the bundleo And because it was not a private toilet as such i t is difficult to Se'! the p:c"rson most likely to ;,,:w, :c:;pt the 3rticl2s th,ire e For it was obvious even to the appellant th.:,t t:,at was nut a s1qfe place for hiding anything -. it being accessiblt::, to the public all the timeo ,.... __ ' .--- ···-·•···•- . " -- : -~- AppeJlant' s behaviour in ig'noring PWo4 is call to return to th, sc2'n<::: 'and in failing to report. of' wh Jt 'he h;J.d S•~en in th.:: lilVc\tory - was undoubtedly,, very suspect - but in criminal cases suspicion alone, ~nd however grave, will not suffice to gror;ncl n convictiono · Equally important ...; an accused person is convicted nc,t on the weakn,,~ss ·of i:he defence cc1se but on the str(mr3th of the prosecution ,~\ddence o •. , ...... -~ ••. -~ . • . . ••.• ·.. , ..... ,; __ ·.•• •. . •• In the pre sent. c ..1s2 ,, 9n • ·i· ; . the\ 2·,rfd0nce 'ori record, ·it· was not' clear whEm the articles' ih -~., qu.:.cstiz)n 1,;.,re dumped in the said liJvatory .- so as to e}(clude:· the possibility of some oth,d person .. be ..i.rig responsible for the- mi.sc:hieL ..,.. For· .the: above reasons I am not satisfied that the pros,,icution •. ! 't Cu~? W~\S prove_d b12yund all n~asonabl,,· doubts" Accordingly 1· would . . .. · . giv~ _the b,mefit of doubts to the appellant and quash both the ., conviction ,md sentence. The uppellan_t is to be released from -~ -. ·•. prison fc-rthwi th unless otherwise h . ~ld for s,~me oth· :r lawful order o Ord2r accordingly. ,. !· .· Do:tc:::d c1t Dodoma this 20th' day of October, 19,7''/ ~' MoJ ~. MWAKIBETE JUDGE .\ ' . I. ).