19841019 TZHC Mbeya

f , - - \•' IyE.i•:Ti;L COURT O-'LrP TAN.ALTIi . .. . . ATrflYJL ••L• JD#TIQi. : • (jijry11 RGILPRY) CR APPE L IO. 56 QF 1 9 04 - 0 I( 1 iT L 'UIWi AGP 01MIRUiL Cid E 110 • 1 20,'35 OP THE )I'EC}T COURT OR SUIT J 1E' DITRCT Th uJC 3eforo . V. Nlelwa, iJsq,, Resiaent '1Ttate r . iO1fLL1TJ JUITI •., •.. • . , •. EiLLJr VERSUS TI-UI RPVELIC 0 qn. inSTT. OHAflQE STEiLING Contrary to bec.tion 265 of the P enal C ok'.c • JUDG1L1P •-.. BAHATI,.J..:. - This isan appeal by 1'T Jin3an3a Jill who as convictec wIth ci.nother accused Vieeht Kainani o telin c 'o. 25 ol t. erEl Code trxct sentenced tQ fivevycars' .iinprisounent The f ots were thot et a Ie Cr ary o anauaha viLLa ) Q and he wes ao iC. of b in cx'o with te elant on behalf of the National Iiiii-ia Cd3ration heeino.$ter reerdtôs The appellant was a-.on4t neribor Of the vilIo The appellat and the first accueed hd kcps to a safe wher lucy ]:ep th iocy which they received fran T .C. 'den i n ulo, -' .2, p olThnt and the first accused moncy to rcr cr:eo Pc:: the hon chey x6 ired the money to or of :.,1526O cl, coc re i aec cy were charged as at prcor Nioodenu SucThi1iP -; 4, o the othe:c hand to:tified that he was the village Chaircan of 1 pre i11l ftc l79 to 1930. 0onc rrin the crops bouht by the c . 1I eco oc, . oid that they were stored in open op cc '1: T wo cellocILd in Jy, 1900 Some crops reinct:col1 ot ii 't , 19C0. Thei. 600 people ere inforned aUout the c:.n thidll e:ce. ham; inadod b," ra - and white ants - ,- - - •->.---. t-,v :Cf, p but ,tboy took very Ji o 1C P• C 1 C±U( a ic Cvi once by sajirg that he toic o cc t c eseounts h the crops hod been dostrQr 1)r O j flrL in his opiniohie - •, • • loss detected caie to :1 -hece;e-c 'P crois - -rhjoh Iron; deOtóyeddio £i]èo W fl because the cronc .rT1c u aL inot cj ii'I ti t. In his defertc, Y c. oUn[ e vkd to icve heeI- rco1 honey Eron - -. - • L _______________________ _- N.N.C, to buy, cps Tie: hbtiever said. ft:at the alleged lose of Shs.9152/60 was the value of the destroyed rbr vermin because of lack of s -torng facilitiao because the wero ilh the open for about two months 1 The fi,st accused gave a qjJ7jV_ar defc.nco * The learned trial 1 iaistra±Jonsderodthè evidence and found that the Shs.91.52/60 could.by about 451ag: of fiigeriillet at 2= per ki1oarn price or alternatively 90 1v' "a ogb'in a't the p.iice of 1/= per kg. He found the amount of 45 bcts.. of. .iger. rict to be too many bag. which could be destroyed by vcrmii:. lie also cotisidëèdtho losa of weight - but round that the lost weight could not have cone to so many kulorans. e therefore held the anpeilant and the first a,sod respcnaile for the loss and convicted them accordingly. The appellant hs challenged this judgment of the learned trial agis. tr&te The appellant argued in his petition of a";peal that the shortage could have been occasioned by the N.J.,C., employees -iii the collection of the crops and that the l''rnecl ict.ata should ha'e believed and found that the veriu.ns could have c"- used such a loss, lie also areç1 that the proeoutión did not ccnoicier a deduction of 15 per c-et )hich is allowed by the Corporation ( 1 TT 1 C. as ollouanco for. crops sbrinkae and destruction which would have a - i over 10,O00 because the Qunt of monr i3O supplied was 'hs,11O3470O. The Republic d1d not support the conviotion. lir. Peemb learned State AttonGy ared that the explanation rvn by the appl1ait ôi' 'the lss was reasonable and it ,uas supuorted by the evidence of: P,4' and. assuch it ought to have b:on •bolie -v-ed.. I aêe with the :iublic tht this appeal hasreritee -The Judmen gt of the learned trial hagistxate with all respect oou,d t possibly be ' correct# The learned rial istratc consid.eed the loss ihich could, have ' 1 been brought about t oiigh G n by vei' iinsanCl also through loss of weight or shri!kago of 'the cropo, c also considered tlia a11owefI. for crops shrinkage and destruction and yet he still come to the same figure of ,152/6O as bein• iheloss ifor. which the aopellant r3spo4si 1l.' Certainly the f±guo ought to have been iectuoed to pQssihly'a1f if' these elements of destrucmoi an.. shrinir ge were taken into co4oaiion. Secondly the evidence of, Di.4 the viUag cbair s}ow that this loss was due to the roruins and loss or weiGht of the cops There was no other evidence to the contr'rj, vLn going by the prosecution cese alone the a,pellant anC hi co.-accused ouht tq hove been cquicted, \Ihat the 3- learned trial Mastrate was doing when he was considerin; whether 45 bags of finger millet or alternatively whether 90 bags of sorghum could have been destroyed by vrmins was sneculation. -iiere was no evidence that the amount of produce whiôh was destroyed through vermin and weather was less than 90 bags of soum or 45 bags of finger millet. 3:1±5 judgment was therefore based on speculation and not on evidence. Thi5 was wrong. He ought to have accepted the only evidence available about how this loss occurred. Had he done so he would not have found the case not proved beyond all reasonable doubt 1 • or the above reasos I allow this appeal. he conviction is quashed and sentence together with the comnensation order set aside. The appellant should be released from custody forthwith paless held for some other lawful -- cause. With regard to the 1st accused who cUd not appeal, I invoke my revisional powers and quash the conviction and sot aside the sentence and the compensa- tion order Lor the same reasons as siiom above. The lot accused, should also be r.e1easd from cu tod forth:ith Unless otherwise lawfuUy hold. A. I1i11TI, JUL81. 1 9,10,1984 Court Judneit ce1ivore1t in 0 ourt cm 1 9. 10,1 984. -' Mr. .Teha for .lcnalllic. - For appellant absent. A. JlJS{AfI JUDGIiI, 1 9. 1 0,1934 CERTIl]:L ±u. ci i:.0 cigI3\rLJ, / I 11 DJ:Sre1 LPG]: JTPelll