19781127 TZHC Dodoma1

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'1[;eT.xa tuTTEeidE AOU axe pus SeUç; euq PTECI .9E)Ljj q.inE;ep trç ue1uuoSTXcIu1T iqOtu eeiqq. xo =jQOSL[S ;o eUji E JEd o- peoueques tiose e.xaM.ptrs 'epo Tsuea et O (i7) Pu () V t6 s/o upxeot ;oeQue;o et[q. ;o peoTAuoo pts Tp peZxstjo AIfuTO eXeA 'empn STLi UT UTEax TTTJ 1 I uoqdTXosep 'T°TW 'TeA14oedsoI P5fl00E PU00e5 pUtE 1S.ITJ su TET1q. a -qq. 9r u pexeecidis Ot{A 'TpTt{ss xei pure JTTV uiessn 'squsijedds o& etj r.'v(IIHo dl i.\I CIE I'\I 0 c[ II f S S 5 1 5 5 q.uepuodise oiniaa Hdl SflS.IOA WuTTOddy' "" HHJI01V ctv x'riv NISSSMH vwoiroa do laloo worwia LL6I. do Li79 OIaS VD 'IVUNIUD TVNI'OIHO • L6 I. do Lt 'ON TdIVV1II]II'dO I0IdlDISIHflf idlv'rEaaav voaor•. dlV #YINVZOI dIO dlHIlOD HOIH HJI U r'5 ) Subsequently, the f irst'cc.iise 'ho had 'beë•i on safari when the second accused was .aested, was also anrested. I In his defence, the first accued said tbat he ad left for Kondoa suddenly on 9/11/77, and that the second ai:pollent was arrested in his abencHe added that the second accused could not sell sugar ii, the former's äbeence. . In his defence, the so'eo.d accused said t t on 13/11/77 police officers went to the snap an"d a'kod for sigr. He told them that he had two sacks ofugar. The 'sugar was then seized and he was arrested. The second accused added that he did not sell the sugar because the first accused had instructed him not to sell sugar in his abC.enc,e. On that evidenc, the learned trial residentistrate convicted both accused persons as charged. In conviàt1 the first accused, the learned m•agistrae had this to say: ' ' "1 must fin.d.the first accused guilty despite his absonce when the offer was made bedause they had piabnod ro't to sell', the sugar. I am highly suspicious just as the prosecution feared that the two sacku of sugar had been kept in the course of hoarding'because the accused persons wore looking for Cutomx -''sswho would puxcase, each sack at an exorbitant price. I'raay safely speculate tht such expented customer might have been soae of these kangara or pombe brewers." As would be expected, t'is passage in the learned magistrate's judgment came under firce criticiss. br learned counsel for the accused persors. I ha'dly need point out that the criticism was valid., That p,asage was, to' say the least, east speculative 2 There was no evidence on which to that t'.ten.t. , accused person must he ccnvicted on the basis of the evidence on record and not on the basis of specub"t'ive reasoning of the court, however intelligent such speculation may he. Be. that as it may, it was conceded by the prosecution that at the time the police officers wont to the sho.p the first accused was on safari to Kondoa. The offer to buy the sugar, therefore, was notmade to the first accused. .13 h Clearly, therefore, up to the time the prosecution closed its case, there was no evidenôe connecting the first accused with the commission of the offence. The first accused, therefore, ought to have been discarged and acquit;c under section 205 o ' the Criminal Procedure Code. As regards the second accused I find no reason for doubting the evidence of PW.1 and PW.2 - witnesses whom the trial court accepted as truthful. I, therefore, accept as truthful that when the two witnesses offered to buy sugsr, the second accused twice told them that there was no sugar, and thu I; it was only after the two witnesses had told him that they wero police officers and that they were going to search the premises that the second accused admitted the.t he had sugar. This conduct on the part of the second accused was inconsistent with his innocence. He was, therefore, properly convicted. As to sentence, I see no reason to interfere. The legi- slature 2 no doubt, regards this offence, as indeed it is, a serious one. This is clear from the heavy penalties provided for it. In those circumstances I would say That the sentence Tas fair. If anything, it erred on the side of leniency. In sum the first a cused' s conviction is hereby quashed and sentence sot aside. The fine, which I note he hsn paid, must be refunded to him. The second accused's appea]J. however, must fail.. It is accordingly hereby dismiseod tie its :;ntirety. B.D. CHIPETA, J UDGE D 0 doma 27th November, 1978