19831106 TZHC Mbeya

-, . . . p • • • • EOC 0.1 .13 Da:U .10IS1 9T .103 SOO.1flOS Otfl 4 p0zthI ttITZt moo rcT.1. eTq. S 30LE3A0 O. tIcJ 'Gd00000P1L .111O .10ptZfl flCST .10 UoTq.si,nb ot s LTt0CP 000t.1 '/ P Jd 'L' !0tt t9VU.1e1B frM 01. cIt iricr )T[ pt Oq. ot OU 0TT D[3 EJ U8T. OqJj et. mot ue.a qot 's.1EAoq.uoo OL Coop iZIoT'oodE.e.I cUe1U?4t .1wp vl.kj pui ' L2r7 t çpttr 'jC1 Cto.; e .I0.0OCISUT CiA :T Aq pe.1oAo0a.z tunbps e.ioit dt'rnd puu ouou: 0p4oeie we ., Or Pq pue eeIto JP T0.Ts oeqp .c061 j0 Lqt.0I: OL UC UO0J.0 cluincI .1eq.t pu OUTqoYux OT.1'0Oo T,n ptc..•oqtz ufo.±cj rre;. OOTtOJ 'SsUio* tOt L, UT'.T!' 'iijtOj tttS ' 0. SUC3S 00t1OpT1.O OLIJ OtllS 0t4 &t.tz —qns o poo ;o st tic po u ot 'tqt sq uo uTsrI TcIpue 'sosuetzt' ;o ttc TOOTO o tr tOLIt10 uOt0tAUO0 Uti tJdV St O ATO ItOh CT Ott UOLtt0CTat 9 ATJ \ o 90LT,0q.L1GS t ootiar. -xn 'tioTYcAuoo atrt cIeotti UT peuirtflO ,POAOT'[O,T .'ett TT4 8t 0.1TTOij thinci°.XEt'eit PU 'OUTtt0U O.iq.Oae 10C DtrC 'E21p?fl ttTpTTrq OOflO: cit. orui ve.iq pip '86Ifr q.noq .10 T.Z0 'quwEacdu pips aq. ;it. uoc 'stio oT ot 'wo.IJtet[q. tes puv Itxp1 -çnq ouç ?upe.1c 30 00U030 &t: .103 ttO[Ee(!th3 et tieaq .rçwy rtqtg jo .uew.oipu ôt b. .scfetçi s'uit crno trççc1 • 2 'TT- 91 cfto aPoo Isua, I. GL4 JQ 963 s/o trçatat uoE[eJ uçq.çwuioo ptn tIp[çnL1 t oqtxç .1tto e. .. •.a. oir crir a aH4L :fl - r .o ................. tawTiga, vnri av I L, riirIc •.'Di:Ia xo a Iri'i Drj1Ic ILL • 6t jo çL 'oir abvo Iv1t::1H3 !ILIo Oi'IiVL QiIi • • •• floIDIfIfaYIIr:LTCJ vu1 1I11 do L?ffiOj HDIH ZIM i:I — 4 S - .- . . . . . .2. To be appreciated 'irst, ind;ud I hope the trial m istrato did, although he mdo SpeCifiC mou-i;.icn on it, is the lua1 fact, thet the case stands on circu.i o:oi;il uvi...cflcO 9 ortd that is, to convict the appellant the circumstantial chain of eviLencu of events must irrosistalely point at the aprollani as the ciilty ucroon. In this chain ioints, we have 1hT2 Cieioonce hi-iitula a driver of Land Rover Jog. c IJ.T 513, who hsti:[ied how h was hired ui; the instance of the eilazit for ohs. 4UG' PJ2 claimed he was led to Ruaha bush area by thu a-cl1wot, wiwji -e an electrical machine having been loaded on to i;hu caid b'uJ Lever, the onmu .f12 a -, id the appellant delivered the sar:e at f-T3s hone, to i3 hihself. Thu appuliant has in his memo of aual s; :e:od rooecr.aon watnusces d11, 17H3 and Pv14 with vernosious ho tiiity, brt a benevolent silence on 1112, I can easily allow my self, the Ii -arty1 to. conclude that 17.12 was spared the atta.cJ because of the truth contents ofotinony. I would therefore conclude and .iud as d.IC. t__, . i;rinh. ucunt, -i-ha-i; truthful:Ly, 11!2 was hired by the apoellant for thansor'i;tion awa. delivery of the electric xaach,jriQ from Ruaha ard.a, to PJ3' s plecu ;- ad this :T2 did in th3 ccaenany of the appc11at, for sale at a prior agn u-on pnico of ohs 101 9 000/=, Prom the tectiroony of dii and the electric reachino, was reoreed TZ - from 713, while thn rer :2naii; -ae ::ocoveroi from P;14 2 and hone is no earthly heava1y or even force, that can change the truth of it. .,•. Lgaia on the qnosti-on of identification by 1111, thifl -i; electnia machine bore No. 02/141131, while the we ben pu;apT s LOs were 0 82067 - 4, were as visible to the nahud eye, and as the nolice c bation ledger hoot uneuiooa1]r bore the same numbers I:.as not a.i.noscocI challenge. Prom tials evic1ene I entertain no qualms t all, and confidence does easily propel me into concluding, that the machines in c1uetions, were the ones that were stolen from the police building,; an the came, that iiore recovered from F'13 and PW4 by P141. Ls pouseci before above how ?f3 and 1AJ4 got the machines is the haunting question. The evide:ece of 1112, Pil3 and Pi4 iced to one person and that is the anpeilant ie. that it was the appellant who sold the electric raechina to ff3 - that it was again the same a. - chant who left the water pump at the home of P4. -ince both PT3 and 1M4, were each found in possession of ouch st-clan property, regardless as to how they got the sane first circumspection d to be a:-feed to the-dr testimony, - I •••••3 and this Ihave done, as did the tra1 court. But having jtxtaeed the testimony of ?h3 and iJ4, to that of P'12 and PYi, notihg that at the time of loading of the' electric awehine in the bush Pf3 was not at the scene, and further noting that 1Y4 was a resident f. 4lose ? I aa. sntiofied that, PW4 and RT did not uecrsso.rily have a self—interest to serve, in the testimony they gave. I hl&v ea did the trial court, that W3 and fl14 did obtain the aiaciinOs from the appellant. It should follow on Izools that, the e.:-elJ.ant had the stolen property in his possession, before he rted with the said machines, chant three weeks after the iar.aLmng in, aa. -ha theft. The :aci- iino are valued at shs 5070OO/= they are machines that, do t easily c...ango hands, ana thoy were the only machines that arcro -telon after the break in, and that, the apellant should be found in posseasiou of . a h of thora, can not easily be eamlained by the doctrine of coincidence the doctrine of recent possession, i-thereby the trial m 4atra.ta rc,eche-, an inm-siati"l inference tulhat t the appellant was guilty as charged, was in t:s cirauarT tanucs good material fr aulica±ion I have cooe to the above con lna ion ththout being oblivious of the alibi staged by the aa Llaa.i, i;ht ";ea from ls-'2/l933 he went to Kjloiro with his wife who m.a sick, loohi;o-g dcv a 2neLiciUaian, and- stayed, there fo ten days, This aJi.hi iwS T-Cefl 30 lied the apuellant, as one uses a porous basket icy a: ari' wa - ;er as hr's to lens. eere"andar . sha]j. -dem nstrate how uni:eiievable the alibi i. hie the apamP,lant said his 'mife wa sick, and neat to -.i1om::ero in hehivary, his ô'.-m claimed host Th12 Toba Nlode tetified that, the wife 11CC not sick, ancL that they' were with him in January 1983,, for two weeks. If I have to :c'cly on JIll, then obously the appellant was in iringa a '; the rae tonal tine. But carom the s wife, while rehea.reieg tim- date. that they went to hilom'P-nao 'on 1/2/1933, she added they were there cmlv for a week, vigarously disputing the two week stay, given by :,'-l2. But :1 1 4 Paid iItiga came with his oim dates, that, the ai)Pel -lant and his wife wont to Kilombero on 11/2/1983, only to subsequently coniesc f that, actually it aias the - men ellont who tought him the dates.. 1:Tlth this .ty1e evidence cu'.norting the alibi staged, one needs hevenly inspivotion first to asd:e heed or tail of 1t, and second, to believe it. The alibi staged is such worthless leaky material, not qualified, to be believed. It rightly rejected. - Of crco tho fai1uoe of an hi,ti, does not itself mcsm the - case has been proved beyond ass omable d,oub , in the absence of independent . •.... . .4 7 evidence so ovin. :nt in. ic case, on tIe evidence revierice roviied above, I arc saUsfiei b1!o c;.c ni ;nove e3rond reaonablo doubt, and the conviction 's ini ;n'tcnce is only a statutory minimum for the offence, the 0i1 is otilly iis.nicsed. 6th Iovcmber, Delivered. this, . . . . •. . . . . . . . . . . . (15 0. . . • . . . . . . .. . . 1983. Court: Presents I. Kr, Kapina ate Atorney f6r the Repuilic 2. Jppe1lan± absent. -i 'rnTmT J1 JD(2.; I Certify t} is to be true copy of the Orii'ina. Y.