19780119 TZHC Mbeya

t Ill THE HIGH COURT· OF T ..NZANIA 1\tr· DODOMA '· ORIGINAL JURISDICTION ( DODOMl~ REG ISTR):) . • CRIMINAL· SESSIONS CL'B'Ji. NO. 150 OF 1977 ,·· .: ~HE REPUBLIC versus JOHN JOSEPH Charge: ,,M U: R .D E' R. ,.c/s ~ 196 of· the. Penal Code. ;_ I J tf D· G E M E N T · ··KISAl'lGA ..·. · J. -.. •. ---=-.. ,.\-••···-=-- The accused John Joseph is charged with rmrdcr- contrar'y to cse'ction 196 of tho Pen2.l Code, the pz::.rticulars being that he.:inurderod one Prima d/ o lUois. The fe;cts of the case 2..re. very short and simple •. The accused· and tho d.ece2.sed _were husbrmd and wife •. They were, :)oth tet:>.chers, nnd 2..t the material ti.mo they ,_: wero to 0 ching 2.t Kigwe Primary School. On Christmas day of 1976 the accused 2J1c. his broth0r-in-law, lmcU1t1el .brbog2:.st (P~! .4) w.ent out in the ~~to:.."!loon to visit a friend of the 2.ccused. This friend ontort2,in~d them . with poJ:1bo nacle '.from. ni17.et. Both. the :::i.ccused and Im2nue~ dr:::mk tho pombe from gbou.t 2 pon. to 7 p.m.• when they :returned home. ; On arrivinc home they found the deceased tP.lking to jeoima Lis2.si ( PW .5), 2. neighb_our 2nd e. follow w_oman t8r-•.cher toachinc . at the. same school. Acccne.ad:;joinod in tho convcrss.tion and . shortly thcxcRftor Jemir:m s:::i,id cood bye tot ho couple 2,,nd wont to her home. Prosontly the 2.ccusod, for no apparent reason, bogan to assault the doceased. He bc2.t her up, threw hor to the ground. nnc1 trruc1.plod rpr all over the body inc.lud:ing .th8 .. f2.c~ .and tho stomach~: .• Wh8n his broth.Gr-in-la1<1, Im.anti.el, tr:iod to int. rvene 2cnd to stnp tho attack, tho P..ccuse,d bcc8JII.G fie:i·,~o ~ he bent. him up _snc'). chas·::d him avay t!l!owin,; stones at. him. Neighbours ::m.c1 other persons who c?me to. tho· scen.e _in 2..n~wor to the alarn rais8d by tho~. children TrGre also bee.ton up ancl ch8.sed r.wr:-,y by tho accusod ·• Such persons so bc-3.ten up 2nd chased r:.way included tho be2.d-teach0r nx1C::. other ter-\chors at tho school where tho Ctccused w· s too.chin:?· ;:mcl who wo:~o 2.lso his nei·;hbc,urs, .?nd a Roor.m Catholic Priest at tho PRrish · . whero the' acc".Sed . usod to r;o to worship~ 2 - • The deceasGd who was thon pre.· nant for about six months was in a very critical condition c'..Ilc'.'. died only ~ "-shortly aftorwards foll.owing the attack on hor by tho accused. 4"'ccording to tho riedical Gvidenco, her death was duo to a 1 upture of tho liver. Tho Doctor W?t.S further of, thG opinion that such a mpturo of tho liver could bo c2.us0d by the deceased beincs thrm,m to the ground and b0inc trariplcd. _,. The ·accus.od dis~pp:::~.._rod from the pl;.~ce the whole nii3ht and all efforts to traeQ him completely '·ta:·iled. On. tho follm :ing morn:Lng, h9wcvor, he arrived bc:.~ok 1 accampaniod by. a R0ma:n Cath6lic . Bisho"p, end on '~be jng asked he said that he had gone to f0t.ch the Bishop to roconc·ilo him with his wife. In his defence the accused in effect did not deny killinc tho deceased, but ho raised the defonco cif insanity. He said there he has been suffering from a ment2.l disoase since his childhood. He was ' . treated for it 2,t Ifakara and at Dared a but in vain, and so in tho end ho decided to rely on God alone as the only . OU\3 who could cure him. He said he c;ot married to tho· deceased in 1964 c=.md he lovGd her dearly. · He lived with hor peacof1?-lly for all this time until this ·, unfortunate incident happened. - On tho day of tho inc idont. he 8.!ld Im.anuel, his brother-in-law, visited a friend of his who gave them ponbo n2.de from nillot. Ordin:-;rily ho had civo.n up drinlcinr.; bocrmso drinks used to affoct his body espoci2.lly his h02.d. On this d.;::i.y, hm-rnvor, he dr2i.nk only a littlo for tho se,ke of his brothcr-:in-law and :.c also as it w2,s on a Christmas day. hey drank from about 2 p.m. to 7 p.m. F;2on thoy rctu:tnQd homo. On arriving homo he lost all his sensos and he clo0s not know what hapr,enod. Ho d.oos not. remember attacking his •wife and tho other people as was testified to by the prosecution witnoss'Os. Ho-i,rcve:;r in tho ond ho fovnd himself h.;.vinc walked long distcnces away from his homo.and noticed thr.t his wrist w2.s in pa:in. This made him realise that ho mic;ht have qua~·rollod with his brother-in-law or his 1-·rif0 2nd so he approached tho Bishop 2ind c1.sked him to ·go 2nd reconcile him with his brother-in-law or his wife. The Bishop· a:~recd and as thoy drove to tho e.ccusod I s homo, thoJ: found the police there who arrested him for killinr.:; his wife •. 3 - Wh0h this· caso first e.ar.ie up for hearinc tho~ accused was cor-u:nitted. to Ts:,ngn Mental Inst,it•ion for· observation r· '· 2md report on his nontal condition,, In response to that, tho Spocio..list in ch:'"1rc;o of tho· 'Institution sont his report -which w2.s rccoivod in evidence.- In th21.t report tho Spoci.:-:dist is of tho opinion t:12,t tho accused is psychotic ;:;,ncl tlm,t r:1ost 1-ilrnJ.y he uas of unsound mind at tho time he GO~mitted the alloced offence. At tho close of the c2~so for both sides, I summed up tho c&.6O to tho two assessors sittint:; with mo nnd they :wcro unnnimous in finding the accuso.d not cuilty by reason of ins~nity. I now turn to consider tho evidence· s,s ·2. wholo ~nd ' . . . .. . . . to d(.;Oide uhcther or not tho char co has boon 1'.Jrovod. In so doin2 '--' I boe:.r in mind that' th~ burden is ·on the 1 prosecution to prove its cr.sc and that no d rity is ~,:1.st on tho ·accused to establish his i_r.,_;_~_ononce ~ Whore as in this cqso tho accused raises tl:.0 defence of insanity tho burden is on him to prove tho insP..nity, but tho degree of proof is only on a balance o.f p.robr-.:i..bilities. If after monsidGring all tho facts and circunst?.ncos of tho ce.,sc I entertain any reasonable doubt as to the· guilt of tho accusod, I have to r9s9lyo such doubt in favour of tho ~ccused. It is cle:=i.rly ostablishod by tho evidence that tho deceased Prima d/o Alois met hor de,7:.th on Christmas· day af tho y.:.,ar 1976. Thero is sufficient ovidenco also to prove that the deceased d.iod from injuries sustained durinc tho attack on hor by tho accused. Indoo_d the accused does not deny causing tho death of tho deceased. His dofe;ncc and tho only def once, however;: is that ho was montnlly disturbed at tho time of tho incident; rmd therefore tho only question which falls for consideration is this dofonce of tinsanity. The accused himself. said thGt he has suffered from mental illness since his childhood and thnt on two occasions. ho has bocn to hospital to GGt troe.tscnt for it. This evidence w2.s not contradicted 2nd. I f inrl no ,:;ood roe.son for reject in£ it. Thon there was the Psychiatrist. 's report in Hhich tho Doctor w2.s of tho opinion th2-t the accused is psychotic and that ho vr:-ts· ri:ost lilrnly of un- sound. m::i.nd 2-t tho . t . imo of . ·,.~~~· tho incident. 4'ii): -·· his opinion appears to be supported by the evidence. The accused viciously 2.ttacked the.: dccc~sed for no apparent reason at all. Yet there was ·abundant evidence tJ.:"LP.t ho loved I tho doce2.sE:;d, his wife, so de:::-..rly :-nd thnt he lived with her- very pc2.cef1::1.lly sin,c their n·.~r±i0.r_;o in 1964. Tho bo~1;:.viour. of tho ~ccusod t01:;'.<..rds his wife w2.s ccrt;.i.inly Bost unusual in thos,~ circumstn.ncos. His attack on his b;rothor-in-le.w, his follow tcP.chers inc·luding his hoad- t~i:,chor, and tho Priest was oqu!:l,lly sonsolcss ='.nd inca- pable .of any r~tion~i oxplcm~tion. Both ascossors :tock the view th?..t the nccusod b2.sically suffers :fyom 2. disos,sc of tho :nind, 2.nd that t.ho por1be 1,rhich ho drnnk on the d::1.y of the, incident ~ausod this discilso to flare up thus :nzili:inr hin bohc,vo abnormally and kill the decc2.sod in the process without knaviing ·whnt he 1•ri'..s doinc. I sri_,...,_rc the s:-:nc view. Thus I respectfully ac;roo with tho unanrnous view of tho two. assessors and nc'.lro a spcci~l find:L.'1£ to tho effect. thP..t · the nccusod did kill the deco~s-:,d but that by ·•. rc~son of his insrmity he is not GUilty of tho offence • • R ... H • KI Sl.iJ.iill-A JUDGE ORDER It is directed tlv.t a certified ·co 11y of those procoodincs bo submitted tot ho Minister for Justic·o for further direction in tho ri.2.ttcr, :--..nd th7.t nc'"'nwhilc the ~.ccuscc1. is to be dct!;'.inod ~-t tho Is8.I1,;~, McntP-1 Institut.ion as a cr;i.minn.l lunf'..tic. R • H. KISl:.NG A JUDGE 6.viii.1979. Assessors thP.nked r>.nd discharGod. R • H. KISJu""if Gb. JUDGE I hereby certify that this is a true and e9rrect •~PY of the oriGinal judvnent. \ .·· - ) DISTRICT REGISTRi\R DODOMA.. , . ...... 6 '1hese are tho storiei:i which the accused peroons gave befo_re this court. None of the accused persons adduced evidence. In my summing-up of tho c.:-.se to the gontlm-'.len assessors I was at pains to caution them thcJt they had to approach the evidence of Tffrnanganyagila ni th great c2re. I reminded them thc,t she was the only identifying ,·vi tness :in this c.'.Jse 7 :md the 1:q.leged killing tool::: place during the night~ I also drew their ,}ttention to some of the points raised by the defence counsel, touching upon the credibility of the witness i It is unnecess~ry to say th;::it I approach the case in the s2me spirit. In my view 9 the CQSG for the prosecution stands or c~.ables with the evidence of 11manganyagilo. Samingo. It is logical 9 therefor2 7 that I proceed straightavvo.y to consider her evidence. As I hope to demonstrate, the evidence of this witness can not be a safe be.sis to hold th;;1t t:10 ac~ucwd persons were connected with the death of the d eceosed.. I believe that Hkono r.1wagenda is dead becQuse there is no dispute about it. I find as a fact tl12t Mkono ~/fu-vagendn is dead 9 o.nd thz:t he lost his n.::,tuml life in the hari.ds of peoplo 9 Dnd. th:,t whoever robbed him of Jij_s life is guilty of murder. There wr.ia no justific.:.ition to those people for killing him. MmnngGny;,gila claimed to have wi tneused th2 attn ck on her deceased huGb;::md. She also claimed thnt sh~ went to report the matter to lll.sikose Che1ngv1n eo.rly in the morning regarding her husband. Hsikose 9 however 9 contradicted her when he snid t:1cit she reported to him ~;t 1.00 p.m.I I have no re:J.son to think th.:,t thQt was fnlse. I cc111 not see any reason why, if the dece;::,sed I s wife made the report eo.rly in the moming 9 Msikose should tell false evidence in this court, I prefer the word of CJ.1;:,ngwa to the won:1 of 1".linanganyngiln. ../7 ,· 7 It was odmitted by Mmo.ngnnyagila thz,t she did not tell Chnr:gwn thot her husbnnd was killc::d by the tI1ree accuGed persons. She (J _.5• ;j;ltentured to cxplo.in why she didn I t tell Cl1nngwn to what happened I, to her husband. She clc:imed that she found d H'ficul t to. inform ai. hoµpe,1ed to her husb::md, <,1 . in view of tlH:: fact that her husband's penis was severed. I confess that I CE,n not believe th;::t such c:,n explanntion co.n be accepted by a nursery court. There was no renson why Mm.:mg8nyngiln should not tell C11aneHn thc:t her husb£md hod been killed by the three accused pereons 9 and stop there. She did nnt need to tell Changwn th::,t her husbond' s penis had be(m severed. Kiiling of n human befog is 2. very serious mntter, I ccin not believe th::-:t a wife would lie to D relative os to whc!t happened to her husband merely bees.use her husba;.1d I s penis was severed. The question I nslr myself now is g Why did J\r1n1211go::1yagila not tell Cho.ngvVa that her husband _haci. been severely ntt.:ickGd on his head? I :find no reasonable answer to that question in this case~ · But that is not all. Even after Chongwu ho.s soen the desd body of her husband, Mrr1'.lngnnycigiln did not d iscloi.,e to hj_ro thnt hc,r husband had been killed by the ,:1ccused persons~ She disclosed th3.t 1Jfter she was tied. I do not believe that she was in fear of losfog her life or limb. '.i.he:re were villagers .-::nd leaders of the village present wL~ ot the scGne. I ca11 not see an;i,r good rr-:c::son ~ c she should hove with-held the names of the killers of' her husband. But her evidence hr::s more weak points. According to the evidence of' Samson 1'.1dude 7 the Word Secretary, Mmangany.'.)gil::i. ot first told the witness that she did not know who had killed 1.1er husband.It WQS only after the Wartl Secretary s~~ hnd interrogated her for a lo;1g timr.~ when . /\ said thqt she feared to say thnt her husband hod been 1Hurtlered, ••/8 I. 8 If she needed protection 9 she h3d the protection. llicrc was a Wmu Secrct0ry wt10 is a locider of the P::irty and Government in the Ward. There v,ns no rc~,son to fear t11e three accused persons beca.use there wns protectfon. Agnin 9 the story ·which Mmanganyngila gave to D/Const. Solomon Swnta di:ffers with the story she h01s given in this court. According to tho story given to D/Const. Solomon Swnta, the first accused entered in the house firr,::t and started to attack the dece,:::sed~ 2fter tho decc.,sed hc,d snid that he h:1d no ciga- rette to offer the :first accused 9 and cifter the ottcick h2d commenced the oiher two accusod persons entered the house and joined in the attack. Here in Court the witness s.::1id that the three accused persons entered the house togethc➔r~ 'lhe witness did ,1ot tell D/Const. Swata that she saw the three accused persons carrying the decensed to the latrine 9 but she did tell thot story here. 1here is also another factor which compels me not to believe the evidence of Mmanganyogila. 'lhe witness clnimed that nhe clearly so.w the three accused persons entering into the house ,md G ttc,ck the deceased person. She further cloj.rL1E:d thnt she saw them from a di,=:tance of 20 poces carrying the decec.sed townrds ti:18 latrine pit and l::iter to n tree. When she was in the witness box, however, she was um,:11e to identify the accused p0rsons from the witness's box. She hnd to go near to the dock to identify them. It is cle::ir thc,t her eye-sight is poor. If she could not identify the .::iccused p<:,rsons from o distance less than eight paces it becomes r.1ore difficult for one to believe thnt she could hove identified them from a distonce of twenty paces. It c:oes not end there. J\ccordi:'.1g to the evidence of Mmang::inyagiln 1 the deceased was subjected to ph}ical violence for n long time. I\ But Qccoroing to Doctor Irr.::re, the only injuries which tho doctor observed on the deceosed 1 s body wns fracture of the right side ·fj-...1{ of parietal bone. ~ ../9 9 'Jh.c question I ask myself and which I I1.1USt 811deavour to answer is~ If tlle deconscd was subjected to phyical violence for n long time how c,;uld he hove sustained tvvo injuries only? In my opinion the o.nswer co.n hardly be i~· ~onsistent with ]'.!manganyo.gila's evidence~ If the evidence of J: b::innganyagiln is to be accepted, that the 1 deceGsed wns not nttoclrnd by fists but he was o.ttncked by a handle of an axe, one would have expected many injuries on the body of the decec:sed. AgGiri, going by the rGport of the doctor, the claim by Mmangonyogiln th2t the penis of her husband had been severed cannot be true. No where in the report of Doctor Ir3ro :i.s there any mention tb..Jt the deceGsed I s penis v1as sev,.)red. 'lhe Doctor performed the post mortem on t~10 cl ecec-ised I s body :four days 8fter the dece ,sed had 0 been killed. I do not believe that t 11e deed body was so decomposed 2.s. to make it impossible for the doctor to discover that the penis hod been severed. It 11Vill be seen, t 11ercJorc, that the report of the doctor casts doubt on the correctness o:f the assertion of Mmrn:1gnnyrigilEt tho.t her husband I s penis hnd been severed. Reminding myself', as I do 9 th,-:it ·foe_ three 3ccused p(:r8ons stand cll-:::rged with murder, a very erave cl1arge under the law of this country 1 I f'ind it dangerous to accept the evidence of Mrnanganyagiln snd find the three accused porsons guilty ;:is chorged. Both gentlemen assessors wera of' the opinion th~1t Mrnongonyagila told this court the truth. Whot I can only say is that it is possible th2-t she told the truth, but I nm not so.tis:fied in my mind thGt she did. There 2ro severnl suspicious f.:ictors in her evidence. I would not ff,l?.d o cat guilty o:f the murder o:r: o. rnt on the basis of the quoli ty of' ,t}10 evidence of Mmnnganyogila. I nppreciatc tllot the life of 8 human 0°cing has becm lost 1 but ·chnt is no r2;Json for accepting the evidence of M'manganyagila. • .• /10 - lQ - .Fbr the reo.sons I hove given, I find that the guilt of the accused persons has not been estobli~1ed. I find ench of the accused persons not guilty of murder, and I acquit them. Unless they are otherwise lawfully held, they are to be set at liberty forthwith~ ,, ,:_~1\~::·:~_;_.;__..v--.-=~~_,tt;.-:__---- 1' '- ----:c.,:-~-. '---· B. Ao SAM.ATTA JUDGE Assessors tho.nl{ed nnd they are discharged. ) 29.6.1979 I -- - 2 - them to PW.l. PW.2 was the only person with a key to the safe. But each of the small boxes of diaraoncls stored in the safe had its own key kept by the individual officers charged with "girdling." Duplicate keys to the small boxes were se:=>.led and stored in the safe with the Chief Accountant, PW. 6. Unlike others who took the keys for the small boxes with them home - the foreman (PW.2) kept the safe key_at the office of the General Via,nager (PW.4). It was again the same General Ttianager who alone knew the working machanism of the safe with the Chief Accountant (PW.6). The said safe operated by a system called combination._ So much for the workii-:ie arrangement at the Company's offices. Now 9 according to the record, on 24/6/1976 P1;l.l - the Adr:rinistrator of the Girdling Department - handed the appellant some 942 pieces of diamcnd for cuttin{3'. And according to PW. 2 -- the foJ~emo.n - on 24/6/1976 and 25/6/1976 - Thursday and Friday respectively - appellant sent his box for locking into tht? safe 2.s usual after office hours. Cutting of diamonds was not done on saturdays and Sundays. So once the boxes ,-rerc dOl)OSi tecl i~ the safe on Frid.ay the srn11e would remain locked up until next monday. The remaining part of PW.2's testimony as summarized in the judgn1cnt of the lower court is in thj_s formi "The foreman PW.2 testified that when the small boxes are brought to him for locking in the safe 9 he does not have to count if the small boxes contain the correct number of pieces of diamonds as distributed by the'Adminisi:rator. He sai.cl that 9 that is the job of the Adrainistrator PW.l who counts when the cutters rerni t to hir,1 and ch<?c.-ks in his Register. He said th2. t all he do('S is to {J'lance at the contents in the SJi!all box to · see if they are diamonds or wcr J pii}Ces of wo id.p and then allows the owner to lo~--'. the small 1,._·,x and ])Ut it in the safe." It is on record -tha t on Mc nday mor-ning .:., the 28th June 9 1976 the foreman PW. 2 opened the E Hfe to -'.'lllow t: :;,e owners of the small boxes to collect them for ·;hr ir worl;:. All ,\he others except the appel1ant took their sm2..ll ·,,oxes from the i, fe. By 9.00 a.m. the appellant had not shown U' , for work al thou[ t. h< - was supposed to have reported at 7. 30 a.m. Allegedly PW.,.2 infor nod • .he bead of the[:,"irdling department (PW.3) who in, turn inforned the . 'act, ,ry manager and the General ~fanaB'er. - 3 - As no one knew as to why appellant had defaulted to app8ar 9 the General Manager ordered that the small box of the appellant be opened in his absence with a duplicate key. This was done by PW.2 in the presence of PW.3, 4 arid 5. PW.5 was described as the Head of Central Department. When they counted the pieces of diamond in the box they allegedly found 917 only instead of 942 pieces. Thus 25 pieces of diamond were found missing from the box. They then locked the box and left it in the safe until appellant was traced. Appellant reported for duty at about 10.00 am., and exp1F.cined why he was late. Allegedly his explanation was that he had bec•n seeing his sick parents at Dabaga and that he was late to catch the. bus. So appellant was asked to open ttw box a.nd chc;ck the conbnts. Appellant obliged and upon counting he found 25 pieces missing. When asked on the deficiency appellantn.llegedly contended that the bnx had been tampered with. Appell2.nt was then sont to the police ,3fa tion where he was charged. It may be of interest to r2P.lark here thn, t when appellant allc1c-;-eclly contended that the box had been tampered with apparently non12 would nsk him why he should have thought so U.'1d,.1r the surrounding circwnstances! All appeared to acree with the appe:..lant that there were indications that the said box had .een tampered with! As observed by the lower court the appelL:mt emphatically denied the charge. On oath he repe.::i.ted hi::; allegation th.::i.t the box h:1.:'i been tampered with - and suf::{(·fOs ted that either the Forenan PW. 2 opem:d. the box with a duplicate key and stole the 25 pieces of diamond or J·.12 stole the same in concert with the others who opened the small l 1ox. He said that· the officers who opened the box in his absc-nce Hor• not above suspicion. He complained why the box in question should l.,ave been opened to the exclusion of an indep<:mdent witness like a pc•liceman or a junior staff rnembtJr of the company. It was ap_pellants I con tan ti on ·tha t the lJro.ctice at the co1:.)any was tho.t ovGry handing over of diari1011C:: was done by counting an.':. I accounting fully to the officer being :1, ,ndcrl over. He r,1aintn.inc•d that th·. t was exactly what ha1r_lenGd bwt -rnen him and PW.2 when h: i deposited his sr.12.ll box in the safe 011 1 25/6/76. HG observed the\:; PW. 2 would not possibly have allowed r~ n to deposit the box if T-'!. 2 was not satisfied that the box contair,Ld the correct nunber of l' ,_ecos • 0. 0 ./ 4 of diamond. Appellant was supported fully in this regard by a defence witness Ally s/o JUJ:J.anne (DW~l) who also worked in the girdline- section and had a small box of his own. He was again supported on that point by the ~ldministra tur of the gird],ing departnent - one l'fu.iros Luvinga (PW.1). . This is what PW.}. said in cross - exc1r,1ination~ "The foreman cannot lock your box in.the safe without counting the pieces of dicpnond. 11 On the facts, the trial rriac;istratc concluded that appellant nust have been the one who stole the 25 pieces of dianond. He reject~d appell::i.nt's contention that the foreman PW.2 had to count the diauonds before accepting the snall boxes in his safe. This is what he said:- "After all the cutters had only to account to the Ad.minis tra tor PW .1 who dis tri bu t&d the dfononcls. Therefore there was no point for the forenan to count evcrydo.y when the snall boxes were sent to him for puthng in tho safe. The small boxes were under lock l)y the owners and so there wns no cause for the forer,ian to.-count. I therefore rejuct the accused's contention and that of his defence witness on this point. I accept the word of the foreuan that h~ would only glance at the contents in the.boxes to see if they were rec..11.y diamorn.ls and not pieces ,;f wood and then allow them to put the locked. boxes in the safe. Therefore the natural inference fron the facts is that on Friday 25/6/1976-' accused. short rcni•tted 25 pieces of diamond to the foreuan before he retired for home" I!._,._ With respect, I find r;iyself complGtcly unable to ng:ree:: with the reasoning and conclusions of the le.:::,rned un.,:is-trute. On oath aj_)pellnnt h..1.d ·stated enphatically that the foret:an ccunted. the pieces of diabol·:d be·fore accer,ti· g the box for ·storage i:1 the sai"e. Ifo u2..s ::mpportGd by Ally J-i:unanne who: said· he witnessed the counting and -thn. t. the dianonds in his. ovtn box were also ·counted by, the roronc.n ~jofo:e .:i.cce:pin8' the boxes. 'In ad•di tion 9 the Adr:J.inis-tra tor of the girdlinc departr.:icmt confirmed too 'that the foreman .W:J,s oblidged to couht the pieces of c.1ia:-:1ond presented for ·storage before acce)ting then. The learned Dagis tra:te virtually go,ve no roason f-er doubtinc the word of Ally s/o Junanne. lfor did hG sug;__.::est any reason· why PW. 1 should have clearly · averred in support of the appellant th--:t P\<J. 2 WCLS SU:()!Josed to count before 2.ccepting the stones for storage. He 'just renarked in 1x:1.ssing that he saw no tr-int for tpe forena·.1 to count everydo.y ·when the cutters \.;ere to account to the AdI:1inistr2-tor (PW.1) who d.istributed the dianonda. The point was n·:,t whether there :was any point for th,1 f,)rern:m to count ... /5 5 but rather whether the said forerian did count as hG was supposed to do and/or ns contended by the three w:i.tnesses tho appellant 9 Ally Jumanne and the Adninistrator (PW.1)! Again if the trial r.1nostrate saw no sense in the foronan counting the dj_anonds - did the lc:.nrned magistrn.tG see sense in the foren?.n l:lerely glancing at the ccr tents in the boxes which he accepted to have really occu~ed - when the said cutters 'had only to__ account to the ·Aaninistr2..tor PW.1? 1 I an satisfied there was no good r,;ascn for the learned no.:_;istrato to reject . appellant's assertion supported as it was by Ally Jur:1anne and :r:n.de eyen nore credible by PW.l that PW.2 countGd the pieces of clinuond ·. ·before· accer)ing the box into the s<'.fe. In ny conoidered opinion it was probably true that PW.2 counted the pieces of diar.1ond before accepting theB for storage. And if' he cletected cmy deficiency it is unlikely he would. have r.tccc;pted then f<;r doposit in his safe. Accordingly 9 had the trial uagistrate so found it is unlikely he would have convicted. There is a further point. The al)i)ell::mt pretested. vigorously as to why the Police could n:)t be surnJ.onecl to wi tm:ss th(~ opening of the box in his absGnce. This, in ny view, was o. valid point. As prop0rly observc"d by the nppella.nt the four officers who claioed to have opened the box were not above suspicion. In fact two of then (PW.2 and 3) had once been charged with a SiL1ilar offence. Thoy r.iay have beon n.cqui tted as one of ther:1 hnd claiued but the jude;nent relating to their c:ise was not laid. before the court to show tht'! basis of their acqui tal. They nay Jfell hav-; 1>een acqui tt2d on technic21i ti es of law~ Matters th::i.t could aiversely 2.ffect othar people's reputntions I ' should. not be taken so casunl1:rl It ls understood the Irinca Rejgional !' C.I.D. office is n few yo,rds frob t;1e Dianond Cutting Co. Ltcl., So . l ~ is the Police Sto.tic·n just as nc-':'..r. What pTeventod the authorities of the Diaooncl Cuttine- Co. Lt L, fr< rc1 sun1:1cning the :Police to wi tncos or perfo \ the ~.ctual opening of the bo:1? ) I ,ceree with the . a:pp<Jllant that the surrounclin 6 circumstances c•f t\iis o-:,,. se required that an indopendent ' I person - in particular a Pc lice Of:t ic<.er - was called to clo the opening l and counting of the contents of th~ box in question. . ... /6 ... 6 The unexplained failure to do that naturally went far to CQSt doubts ~ reasonable onas of course - in the prosecution case. For, the reascns outlined I am not sc1tisfied that the prosecution case- was proved beyond reasona.1)le doubts. .1\.ccordin(sly I would gi vc the beriefi t of doubt to the a~)pellaht an,d 3.llow his appeal. :Both tha conviction and sentence - including the order of coupensation are quashed. Appellant is to be rele;:i,sod forthwith from p:::tson unless otherwise detained for sone other lawful order. Orderaccordingly. Delivered in Court at 1'1beya this 19th day~of_ ~anuary, 1978. - ..CfktAL . .. - . ' / -j . ' . / . . l'II. J. fli';JJI.KIBETE JUDGE MBEYA HIGH COURT. ..