19861030 TZHC Mtwara2

IN THC: HIGH COURT OF·'I'ANZAJ\JIA ~J_TvJARA APPELLATE J.URISDICTIOJ\! HIGH COU}~T CRIMINAL Al?PEAL NOo 53 OF .1985 Origin~l Criminal C~se No.111 of 1984 of the District Court of songea District at _ · Songea .. Before Fo A. :;?ussi, Senior District Magis-crcte OTTO OTTO NChlr'wI O O O O O O O O O O O O .AH-SLLAl-J'r (Original Accused) versus THE REPUBLIC. o . o . ·• • • • • • • • • o • • RLSt'OJ·iDEill'::,:' ( qrigina.'.J.. Prosecutor) J U D G JVJ I:; N T Rubama, Jo OTTO OTTO NCHIMBI was charged with two countso Firstly office breaking and stealing contrary.· to section 296 ( 1) and 265. of. the Penal Code and· seconGlly escaping from lawful custody contrary to section 116 of the Penal Code to which he pleaded guilty was convicted and sentenced :t(> 9 month.s imprisonmento AS regards to fitst count the pro~ec~tion called three witnesseso The gist of their evidence was that th~ accused had been a remand prisoner at Maposeni Primary court, songea on the night of 10th Mai, 1984 arid that on the same night' remand prison was found broken and all remand prisoners had escaped~ The accused was amongst these remand prisoners. The evidence further diselose_d _that exhibl t money amounting to shs., 5, 222/ =, threads, 5 ,- one sk.irt, one bag of accused, soaps, RCCB 1, · EaR.V 1, letter transfer 1, Record of the court Noo 24/84, 31/84, 35/84, 36/84, 38/84, 39/84 and NOo42/84 of criminal cases and Civil Case file·Noo2/84 and 8/84 were stolena The -accused was· arrested a month later and charged with the offence of office breaking and stealing. The evidence clearly establishes the offence of office breaking and stealing but it does not go farther to estctblish 2 \ that·the accused was the pers0n who h~d committed the off0nceo The accused was ·not the only escape rem.::ind prisoner on thG night this offence had been co!Tlmi·cted.. The accused v1.:is not found in possession of any of the items t~~t had been stolen on the mat~rial.night~ To convict the accused on the ussumption · · ho.ve ' / that he mustlcommitted this offence because he had escape from custody on the material night is J~ngerous. Inde~d there is no evidence at all to establish that the remand prisoners who had escaped on the night of 10th May, 1984 were· the ones who had I committed the offe_nce of office breaking and steu.ling o· In view of the foregoing the conviction entered in respect of this chnrge is quasl)ed and the imposed sentence of three yeo.rs set asideo The appellant is to b·e set free at once unless he is otherwise lawfully held on anothe;: matter. ---". JUdge 30.10.86 Coram: RUBAMA, Jo Pi1rties absent •. Judgment_ delivered. ----- "'-'-~\..--,~-✓ . ~- . - ,,..-'1 ......,\ - ··'-·'•'--~ ·, :-.._.__ ~\r. :· ti\hya . · ama Judge lOo l0.86