19780619 TZHC Mwanza1

•·· ::;:u THE: ··1-nGh icT MWANZA APPELL,\TE JURISDICTION HIGH COURT ·cRIMINAL APPEAL NOo 382/77 : . . ., I,., .. . . .. AND ·MISCo CR;IMINI-.L _i\.PPo ·NOo, 27/77 ,. . .. ORIGINAL CRIMINAL -ci\-SE NO.• ~:88 OF- 1976 OF THE DISTRICT .. COURT AT TARIME DISTRICT i-...T 'rARIME . -~ORE _~.,,M. Bo MFUKO;· ESQ., 1 DISTRICT MAGISTRATE • • •. l . • • . I _versus ... ., . ~ . . ·. . . . THE REPUBLIC~~oooooooooooooooooooooooooo;ooooooo·oooooioooo;oRESPONDENT CHARGE: MALICIOUS D1\MAGE to pt'OtJ:erty c/s 326 of the Penaf;Code Cap. 16. ,. JUDGEMENT KATITI, -I_. One Charles lrlangwe, was convicted of the offence of malicious damage to property c/s 326. of· ·the Penal Code Cap 16, and sentenced to six months imprisonment. The appellant was also ordered to 1)ay compensation of ~hs. 8,000/= to the complainanto ~- r. The short facts are, that the complainant Hussein Bhoja, had his fiat lorry dismantledo Some of the spares including the cabin were handed to one Abdul Karim, who took the said cabin, and other parts, to the appel- lant's pJaceo The complainant, gave no instructions to the appellant, on or about tr.e sameo Nor do v-:e know, what instructions Abdul Karim, dead at the time the proceedings started, gave to the appellant, but we specu- late that most probably the parts were to be kept there. However, as time went by, the complainant got a buyer for the cabin, which was found to have been e1·..1t into pieces at th2 appellant's place, nnd hence th'is prosecution. The appellant admits, to have received the cabin, and other pRrts,but from his late employer. He says he had occasion to leave his heme for Kioruba and that when he came back, he found the cabin cut into pieceso In convicti~~ the appellant, the learned Senior Magistrate, directed himself as follows:- "It shows one, cannot cut i t 12asily, a force must have been used to cut it, anct i t must hove taken long time, and this if i t was another person, i t was with the accuseds concert, or the accused must have sold it, to some one for making charcoal stoveso From that, i t is the accused who caused it to ~e cut, in pieces, and I find the pros0cu- tion1 has proved its case beyond doubt, and I finG the accused guilty as charged and con- vict hi'."1." The cabin may be, of no brittle quality, i t may indeed be resistcnt to being cut into pieces, r,,t these qualities alone, woulct never lead to the conclusion that, the same was cut with the appellant's consent, or, that he must have sold i~, tos?me~nto make charcoal stoveso There is no evidence, to lead us, to these conclusions, or even if they did, such conclusions, would not nc~essarily support the conviction, on the offence chargeda Further, if the trial court, at any time entertained the possibility, that the appe:i..2.ant sold the same to someone for making char- coal stoves, meariinq it had no fi_rm finding relating to the· charge, then a charge of malic .1.ous damage, ;.,ould hardly stando In my opinion, the trinl 0 0 /2 magistrate's direction goes to show, how uncertain of the real position, he was o I think, it must be appreciated, that, to su;_)port the charge of i:1ali,: cious damage, evidence must be adduced to show, that the damaging act wo.s done intentionally deliberately and wilfully - Se;:ce JUMl, RAMADHANI V. R. (1968) HoC.D. No. 147. In this case, there is no direct evidence, that the appel- lant out.the cabin into pieces, nor, do we have circumstantial evidence strong enouJh, to support the view, that it wos the appellant, who damQged the cabin, leave alone doing it intentionally. Thus considering the evidence abo.ve; . including the ...appellant's c:lef'ence,: my.- cqnclusion is thc1t, the learned Stu.te i,ttorney, was right in declining to support conviction. The appeal is allowed, conviction quashed, and sentence·and compensation order set aside. The. appellant, tq be released immediately, unless he has otherwise clash~d-with the law. Delivered this 19th day of Jun(i, 1978. E. W. KATITI -:JUDGE