19871211 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA •· "" AT DAR ES SALAAM APP ELLA'l1 E JUR !SD ICTION HIGH. COURT CRIMINAL_ APPEAL N0.9.5 OF 1987 · (prom o~iginal crim.ihal Case No.20 of 198_6 of the bisttl~f cdut-t of Rufjji Oistrict. at utete) 1e SIKUJUA SAIDI 2 0 JUMA NJ Ali Ao O ·o O • 0 0 0 0 0 0 0 0 0 0 0 0 0 - 0 0 0 •• 0 C) • 0. 0 0 0 •• 0 0 • • 0. 0 • 0 •• APP EL LANT (Original Accused) yersus THE UNITED REPUBLICoooo•ooo•o•oooooooooooo•oo•••o••ooooRESPONDE~T ( Original prosecutor} JUDGMENT MAP lGANOz · J. Sikujua Saidi and Juma Njala were convicted of store breaking and stealing contrary to section 2~6 ( 1)' of the Penal Code by the district.court of Ruf:iji at utete. Each was sentenced to impr:isonment for three years a_nd- ordered to pay a sum of shs.2, 750/... as compensation to th~ owner of the stolen goods. They have appealed. The appellants were jointly charged with three other persons, namely Madam Matopela, Salum Saidi Mnyamba and Athumani omari · Mog~lla, all teenagers. Madam Matopela and Athumani omari Mogel la were acquitted and discharged. Salumu Saidi Mnyamba was convicted of-the offence, but he has not lodged any appeal from the corivioiiono The.evidence established that qn or about 14/4/86 the store in question was actually broken into and four gallons of cooking oil as well as five packets of milk stolen from it. The goods were a donation from abroad and were meant to be distributed freely to the residents of the Kinditwf village, a leprosy carrpo The appe- ~•· llants and the co-:-accused were suspects, The prosecution prod•ced four.,.. witnesses at the trial i.e. Mbonde (PW3), Mrope (PW1) Habiba (PW2) and Cpl Mathias (PW4). Mbonda wa·s ·the storekeeper. on ·14/4/86 he was away. He had left the camp for Kib:i.ti and he had ~ntrusted the keys for t_he store to Mrope, a colleague. Mrope stated that in the morning of tha_t day he went· to the hc:;,use of Mi!,riam Matopela where he ·!tayed ...for some hours drinking a local liqoor. He said he forgot the ke;y at that place and this was not. in dispute. Mariam Matopel·a later handea· over the key to Juma Njala who wa.s a watchman at tke · .-stoYe and Juma Njala jn turn handed over the key to Mrope on the following· day. According to Mrope, when he went and ope~ed the · st~re hours lnter he f."C" :r:d the goods missing~ 1 . ., 2 Habiba claimed to be an eye-withesso She lives ih the neighbourhood_ of th~ store~ She alleged that she saw all the accused persons inside the store at 1 porno on 4/4/86. She said th_at the accused left the store hurriedly when they ·saw a tra.ctot approachingo Th<: appellants denied that allegation .. Cpl.Mathias searched the house of one Turnbo on 16/4/86 in which Sikujua Saidi was then living., He found one gallon of cooking oil in there ~nd seiz~d The rest of his evidence was essentially hearsayo Sikujua Saidi admitted being in possession of that one gallon .. She said· that it had been given to her by the person who was distributing the goods as her shareo The learned trial magi~trate accepted the testimony of Habiba and Cpl Mathias and he based the convictions of the appellants on that evidenc:eo one wond~rs why, if he believed that evidence, he _acquitt!ed Mar:l.am Matopeli0. and Athumani omari Mogellao rn my opinion the prosecution case stood or fell on the evidence of Habiba 7 the alleged eye-,witness., In my assessment her evidence reeks of rei:!sonable doubt., She stated that she saw one ·of the culprits carrying a gallon as the culpr :L-l:s were emerging from the store to flee,. But she was inconsistent regarding _the culprit who was carrying the gallono Sht::! did not make any ,:·epcrt about _the incident to the chairman of the vij_lage, DWS Nguogani. who was around near the store, let a·lone to the driver of the '.:ractor.. .3he saw only one gallon being taken from the store in that afternoon 1 .bu.t there was evidence that four gallons were missing from the store when Mbonde opened the store on the following dayo i: agree that it is ·unsafe to let the convictions stand. I allow the appeals, quash the convict:i.ons and order the discharge of the appellants from custodyo The order for.compensation is vacatedo ~~·~ .. (DoPo~ JUDGE 11/12/870 .