19820604 TZHC Mtwara

IN THE HI3H COURT OP TANZANIA -- n.T l"lTvJARA AFP~LLATE JURI~UICTION --~•:.;:: COUE'i' ,_ri,IMIJ\'AL AP.2L,.L Nb., 8C/80 J~ CRIMINAI AFPEAL No. 8tl8Q '1st .Acco ~-::~·.:1.. :· . ~;-- 'I' F:.l\1C:Ei\i1' ooooooAPPELLi\NT '(Original Accused) Ve. .:..-SUS THC REPUBLIC ooo••············RES~OND£NT (Orig::..nal Prosecutor) JUDGi"..c;NT MUSHI, J. Tht:: two appellants Innocent Micent - 1st appellant and J.,phery Ismail Mtikita - 2nd appEllant, were charged and convicted with an offence of stc::·,Ji 19 l::y sc-:rvant c/s 2 71 a.nd 265 of the Penal code and were Sb t. ced to five years imprisonmenL They are appealing ag~~net s~ch c-x1viction and ~entence., Both app2lli.i"1ts w0re e;;.ployed by Cash• -~,u t ~- c1c ~ory at Lindi and were asiyn .d to La.ci.'.ne Feeder at the factory. The article subject of tl1, 0 .: the::,£·'.= 1.i,,:s a Wd ter pump which is said to be worth Shs.15,000/=o On "t.Jk :'.tc•.t.'rial date early at about 6.3() a.m. the two appella1Yc.s vl'.~re on duty" ih·,4 Fhilipo Lucas told the court that he saw the first aprellc1nt unscrewing or unfiti:,s the water pump. PWo 6 SelE:,11ani Sw2lehe 1,iho was in charge of th<::· i:idchi~es also saw the 1st appellant removing the machine fr,~,m vnere ~i. t was fixed. PW6 was aware that the water purnp was defectivs ~nd thus he told the 1st appellant to take th~ pump to the wor.-._:iop for repair. PW4 also heard when PW6 :L·1structed the 1st appellant to take the pump to the workshopo PW4 further told the court that when 1st appellant finished unfixing the water pump he called one Abasi who is the 2 ,~ ,J 11·. • ,,r:::cording to P\J4 after 2nd appellant had joined th.:· 1sc :..,ppellant 9 they put the water ')Ump in a bag and went away. P'1J2 1•ioi1,:1.,i:cd Hami.s::... ;,donga saw the appe~..:.ar. ..... pulling a bag with in the f,. __ ':.ory c:::; :i.f i:hey were intena.:. Y, ; to go out of the fact,ory • .......... /2 2 ~er-e was evidence th.at at about 1.0..00 hrs the water pu':lp w.a.s .not found any-where in the factory. The two appellants also were not in the fa~tory and it was not disputed that they ~ad not been given permission to go out., The two appellants were :ound at their homes at about 12. 00 hrs when the police went to searc:. their premises where nothing was fou:-:rJ but PWS Noel found the pump near the 1st appellant's house on a seconc;i search. According to PWS, the pump was covered with a il'l'" shirt which he had seen the 1st appellant wearing that morning., B,Yc.i:1 appellants denied the offence and completely denic.::"'. to have touched :::he pump oh the material date .. The learn,?c; trial. magistrate con~idered th:':' 2vidence before the court and ca1c1·2 to the conclusion that thr~ >i_ , ..secution case had been proved beyond. r,:,asonable doubts. On the evidence the learned trial magistrate's fi~ding cannot be faulted ahd the appellants have not raised any ;_;oi;,t ,,,;o;::th considering· to warrant an interferance with the Court I s fL1d.ing,::.., The sentence imposed is the minimum. It is unfortw:ate that the appc~llants are in the early twenties but the law must take its cause. The, appeals are dismissed ,on their entirety. ·Judgment re.ad in court in the presence of Lr .. Kaduri, State Attorney today 4th June 7 1982. sgd'.: No.M. Mushi; JUd<Je 4/6/82 Certified true copy of the original.