19821018 TZHC Tabora

FPP'/ IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (HO) CRIMINAL APPEAL NO. 84 OF 1979 ORIGINAL CRIMINAL CASE NO.262/77 OF THEE DISTRICT .COU1. OF KIIONDO AT • KIBOUDO Before N.M. NABOPIO Esq, District Magistrate IDRAHIM (Original Accused) ITc'T) QTC THERPTJBLIC .............. 0 .............. RDSPONDENT 0 lARGE:- Breaking into a building and committing a felony of steeling c/s 296(1 ) of the Peia.l Code. JUDJNENT The appellant, Thrahimu Mussa, and one Bonaventura Maheru, were jointly charged with and convicted of the offence of breaking into a building and committing a felony c/s 296(1) of the Pens.? Codeand were each sentenced to three (3) years imprisonment. The appellant now apnealFor convinece, I will retain the descriptions of the accused persons as their appeared during the trial, that is, Bonaventura Maheru as the first adcued and the appellant as the second accused. The prosecution's case, in hrief, was as follows: the first accus-- ed was a village cashier while the second accused was vilage secretary t Muharge village in Kibondo District, As village cashier, the first aecused duties included collection of village revenue, and the second accus.ed's.duties included collection of revenue of the Chama Cha lVTa-ninduz 1. Each of the accused persons had a cash box of his own for kee- ping the money enusted to him and each of them had his own keys to his cash box. The third one used to be kept in a room used a.s a ock-up. This room was next to a. room used as a Party Office within the same building. Besides, ea.ch of the accused persons had his own set of keys to the Party Office, which door was the only one lesdin into the Party Office and thence to the room used as a lock- up. On 14J12/77, wills the second accused was in the office, a mIlitia man (P,w,4) brought in a suspect who had been arrested. As the susp- ect was to be put in the lock-up, the second accused removed the three cash boxes from the lock-up and kept them in the room used as Party Officer , T1'ie man was locked in the lock-up and the second accused and P.W.* left the building after the second accused had locked the - • •; •. 0 • a '1 .2 - or of .he office s Next morning, the cash box used by the first accused was found misin - from the office, but there had been no breaking into the building. Suhseuently, some school children found the missing boxin the 1jh. ..... : On examinin it, it was found to be un- locked hut otherwise undamaged, and Shs. 1 1 100/= odd which ought to have been. inside was rnissin. Theeappeila.nt denied any knowledge of the theft of the cash box.. On that evidence, both accused persons were convicted asOhged. With resnect to the learned trial magiafrate, I do not think that there was sufficient evidence to justify the appellant's convi- ction. The DerCon whb stole the contents of the missing cash-box must have used keys to that dash box, and the keys to that cash box were at all material times i the possession of the first accused, i fact the first accused was able to lock and unlock the cash box . after it was found in the bush 0 It is true that the second accused was the last person to lock the door of the office, but that is neitier he.e nor there because the first accused had his ov'm set of keys to the office door That being the position, b.nd in . the absence of any evidence of a, conspiracy hetireen the two accused persons, the ccnviction ot the second accused was not at all justified. Forthe foreoing reasons, the a.ppellant 7s conviction which, inci dentally, the Republic deelind to support, is hereby quashed and the sentence and order of compensation in respect of him are set aside. Unhappily, the appellant has. since finished serving his sentence. There .is,, therefore, no need to make n order for his release. .. 4, 1 B.D. OHIPITA, J ..