19850419 TZHC Dar es Salaam

IN. THE HIGH COURT OF TANZANIA AT DAR ES_SALAAM APPEL,hA~ JURISDICTION HIGH COURT. CRIMIN.AL_ APPEAL NO • 80 OF 1984 ORIGINAL CRIMINAL CASE NO •. 33T OF 1981 OF THE.DISTRICT COURT OF KIVUKONI AT KIVUKONI 0 REPUBLIC VS. * . · -.--- W RAJ ABU MWINYilfilU!U .. ,. WWW ... • ,,_,_J-1"' JUDGMENT'. MAPIGANO -~ J •. I The Directozj df Public Prosecutions is appealing from the. judgment of the learned district fuagistrate at Kivukoni, acquitting the respondent Rajabu Mwinyimku.u. The Republic had preferred alternative charges against the respondent, namely robbery with violence contrary to section 285 and 286 of the Penal Code and receiving stolen property contrary to section 311 (1) of the same code, There was hardly any dispute that the motor cycle of the complainant Ally Kondo TDJ 989 was stolen in the night and that a threat of lethal violence was directed at him. If his evidence is true, =he was despoiled of the motor cycle at the point of a pistol by three bandits who had earlier pretended to be policemen on detail, The three were complete strangers to him. Four months later the respondent, an acquaintance, was found in possession of a motor cycle TDK 553 which the complainant claimed to be his stolen one. The respondent was arrested and brought to court on the charges inspite of the fact that he produced a registration card for the motor cycle. The proeecut ion produced five witnesses, including the complainant, but at the end of the day the learned magistrate dismissed the charges for lack of sufficient evidence. As aforestated, the Director of Public Prosecutions is dissatisfied with that dismissal,. I have carefully read the record and considered the arguments that· were put forward by the two learned counsel •. With respect I see no good reason for reversing the finding of the learned magistrate. Any body who has read the I evidence in this case wiil 9 I think, agree that the prosecution case was foggy and hard to follow. It was the prosecution I case, as it was the Director of Publt:i Prosecution's contention ••• /2 - 2 before this court, that the stolen motor cycle had been dismantled and cannibalized. They would have· the court bel·ieve that the engine of that motor cycle had been planted onto TDK 55 3. I am afraid I find no clear and credible evidence that could have led a reasonable court to find so.. Nor do I see any positive evidence that the engine of TDK 553 had been tampered with. - In the circumstances the appeal is di~missed. Delivered to tne advocate and respondent. jJA4 ' f \C'-1Af~ _:_--- D.P. MAP!G.ANO JUDGE 19/4/1985