19860626 TZCA Dar es Salaam2 1

IN THE COURT OF' APPEAL OF TANZANIA AT MWANZA CORAM: NYALALI, c.J.; MUSTAF~ J.A. And KISANGA, J.A. CRIMINAL APPEAL NO. 69 OF 1985 1. 2. R/C IviU.SSA KAMANWA R/C REVOCATUS ZACHARIA• I • • • 0 APPELLANTS VERSUS THE REPUBLIC. • 0 • • 0 0 e e • e • .RESPONDENT {Appeal from the conviction of ~he High Court of Tanzania at Mwanza) (Munyera, J.) da+ed .... the 25th day of June, 1985 in Criminal Appeal No. 46 of 1985 JUDGMENT OF THE COURT KISANGA, J .A.: The two appellan+s were jointly charged with store breaking and stealing con~rary to section 296(1) of the Penal Code. The District Court convicted +hem as charged and sentenced each Qf them to 7 years' imprisonment. It was further ordered that the sums of money found in possession of the appellants be paid as 11 compensation t.o the victim of the offence. The appellants appealed unsuccessfully to +he High Court. They are now appealing to this Court, and their appeals are consolidatedo Briefly the facts as found ~Y both cour+s below were that at the material time the appellan~ Mussa was a recruit police constable assigned to guard a godown belo~ging to one F. Y. Rashidi who had been rounded up during the crack down on economic saboteurs. The godown was being guarded by the police 24 hourso f 2 At the material +ime too +he appe11an+ Revoc~+us was also a rec~uit police cons+ableo He had been suspended from duty but he used to keep the company of +he appellant Mussa when Mussa was guarding the godown. The godown was s-t.Ocke1 with various shop goods including cartons of Dodoma wine. The godown was duly inspected and found intact before +he appellant Mussa was assigned to guard it. Some day +he police received informa+ion +ha+- the godown in question had been broken into and a number of goods had been s~-01en from there. On visiting +he scene, +he appel1an+ Mussa who was supposed +o be guarding i+ could no+ be found; he came to the_scene only some time later. Upon inspec+ion, the godown was found to have been broken in+o by removing one piece of an iron sheet from the roof, thus enabling ,a person. to gain en+ry. Upon further examination it was found that various i+-ems including cartons of' Qodoma Wine were missing. On the day +he breaking was discovered the appellant Revoca+us had hired a taxi in the morning at abgut 9 a.mo to ferry four cartons of Dodoma Wine from some place at the Hindu grave yard and sold tw0 of +he car+ons to one John Samo and tOOk the remaining +wo to his home. On the day following the discovery of the breaking·both ~ppellants were searched. The appellan~ Mussa was found with two bottles of Dodoma Swee+ Wine which he claimed to have bought from one Lauren~ Majani. Laurent Majani, however, giving _evtd~nce for the prosecution refu+e::i +he allega+ion and stated that at that time he had no s+ock of DOdorna Wine •. Indeed +he evidence was that at the material time Doooma Sweet Wine was not available in the marke~ in Mwanza Town where this incident happened. This appellant was also found with Shs~ 7, 220/- in hard cash and a •••••• /3. 3 ... I temporary bank pass book shewing +ha+ he had d~posi+ed a sum of Shse 4,600/- in around the t-ime of the discovery of +he breakingo The court rejec+ed +:he appellantts explanation +ha+: these sums of money were sen+ to him by a relative from his·village. As fo;- the appellant: Revoca+-us, upon being searched he was found wit.h two. :boH:les of I)odoma Wine and Sh~. 10, 800/-. The court rejec+e1 his explanation tha~ he bought +he wine from one Mathias and +hat he go+ +he large sum of money by selling cat-tle · which he inheri+ed from his fa+-hero Thus the evidence was en+irely circumstantial. As regards the appellant Muss?, he was guarding +he godown. which was broken ·1n,t9.. When the breaking was discovered he was himself no+: found on t.he _premises; he only came there some +irne later. Only a day after the discovery of +he breaking he was found in possession of Dodoma Swee+ Wine, being one of +he item~ s+olen from the godown and which was not availab:i.e 0::1 ~~he market a+ +:he ma+erial t:ime. His explaoa+-ion of how he came +o be in possession of +he wine was d·ernons+ra+:ed f-O be a posi+i ve lie. In our view all, +hese circums+ances were sufficien+ frcm whiGh both courts below coyld draw +he inference, as +hey did, +ha+ +he appellan+ was a party to the breaking of t-he 9o~own, and +ha+ t-he large sums of money found on him were par+ of +he procee::is realized from selling ~he goods stolen from +he said godowno Similarly as regards +he appellant Revoca~us, he used ~o keep ~he company of +he appellant Mussa when Mussa was guarding +he godowne Only a day af+er.the discovery of +he breaking he was found in possession of cartons Qf Dodoma Wine. He failed +ogive an explana+ion of how he came to be in possession of +hose goods. Ins+ead he denied _being foun'.i in <J••••••eo•/4. ,. I - 4 possession of them. As in .._he case of th~ appellant Musl?a,. such circumstances warran+eg .._he inference. +hat- +his appellant took part in breaking intQ the godown and ... ha+ the large sum of money found on him was par~ of the proceeds realised from +he sale of the goods which were s~olen from +he said godown. koth appel],ants in .._heir memoranda of appe~l raise gnly points of fac+o _Bti+- this __ being a second appeal +.hj,s Court: can only en+-ertain i~ on poin+s of law. Since no poin+s· of 1aw are raised +he appeals are mi~conceived and ~hey are accordingly dismissed in their ent~rety. ~ • DATED at MWANZA thi,2,6 Say of June, 1986, F• L. NYALALI CHIEF JUSTICE A. MUSTAFA JYSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a af-rue copy of af-he original. 0--'·//f. (J. H. MSOFFE) DEPUTY · REGIS'.1.'RAR.