19941219 TZHC Dar es Salaam

IN THE HIGH COURT 1)F TANZANIA AT DAR ES SA,LMM APPELLATE JUR,IS~ICTION PC. CRIMINAL APPEAL N0.16 OF 1993 (Ftom the decision o! the ~istrict Qourt of Mafia ~~ i~ Criminal appeal No. 8 of 1993) Orignal Criminal Case No. 409 of 1993 of Kilindoni J?rimary Court. CUMBO HASSANI • e • • • e • e e e e • 0 0 • e e e O • 0 e e e • • versus THE REPUBLIC • • • • • • • • • • • • • o • • e • • • • e • ~ • • • RESPONDENT. JUDGivIENT This is a second appeal by Gumbo Hassan. He was eo•vititd ~ the )rimary eourt at Ki~indorii i~ Mafia district o! X'tlibflf with violence contrary to sections 28~'-and 286 of the P;1ai tgd•, aJJ.d he was sentenced to fif~$en years :i,mp:riaonmen.t1 lij,• apr ,~ar to the district court was dismissed. The complainant, :e.w •. 1 Moja Kombo, a young girl ·aitd · ·' r /',, ,- eighte·en years said that she was on her_ way home at midni~l\t. 'C " .: on 24 December 1992. \"'.'hen she met the appellant who hit hti' ._ 0 ;. and stole cash shs.300/::: from her. she raised alarm and twt i< persons P.W.2 Ali Mohamed and P.W.3 Mzee Saidi went to the seene. These two witnesse~ said they the complainant found and tne appellant holding each ot~er, and the complaina.J\t alleged that the appellant had stolen iihs.' 300/= from }le::, However, the money was not found anywhere at the scene oi- . ' 1n th~ appellant's· possession.· The appellant who was arrested on the spot, was sent to the police station ana 1hargec1. In his defenc•e, the appellapt saia .that the,.cQniplai]la:lt r , 'J'· waa his lover. On that.day, they met at a pombe shop ..... . /t. .. II ' 2 where they drank local ltquor together, and thereafter they left the pombe shop together at about 11.00 p.m. Qll ~he · way the complainant who was drunk, felldown ~d the; .app·ellant li!ted her so that she could walk. There w8'P an ~J'gtroient ,. . :,-' between them as the complainant did not want to 'be ~'Ssia~ede These noises attracted passers by, and they arr~~ the appel~ant. The incident toolc place at night. It seems to me that ~Qth the appellant and the complainant had ~aken al-OQhol. ~he main groun~ 9! appeal is that the loW€r courts er;r@d i~ finding the appellant guilty while the alleged "tb.9' was not pi·oved •.:; As Miss Kiwanga, learned State -ilttorney ~Ll•• Mmittea. i! there was theft of the money, then ~he wit~ieses who ar1·ested the appellant on the spot would have found 1ie lt is inconceivable that the complainant had that sum ot money f tolen from her, and yet it could not be recover~, while t 1 ::i appellant was arrested on the spot. Clearly,·· this wall a case of persons q~arrelling ove:r some pe-t;y matter 1 and one of them m~kes a serious allegation agaJ.?l&t the othEc, but there was no proof of such allegat~on. lt waa !or -he prosecution to prove theft/ but here there was . - . . no proof at all. \ Rot1 ery with violence is a serious offenee, ~ a (, perso11 zu y only be convieted where proof, like i.~ all. eriminal cases 1 is beyond reasonable doubt. The comp_laU}ant aJ.leged ·.hat the appe1lant stole some money fro~ her ~ier " hitting her. But the witnesses who went to the seen~ q answer to her alarms did not find any money., \The. appell•nl had no opportunity to hide the money because the witness.ea found him and the.complainant holding each other. If the appellant had stolen the mon~Y, it would have'been found in • hi• per~on. In any ease, he would not have waited there tor th, witnesses to come after the alarms were r·ai'sed· by the tompiainant. I share the: opinion.of the State Attorney that the prosecution did not pro~e. _the 9harge against the ~ appellant. ·' •., '..rhe appeal.is allowed. The conviction which is n~t eupported by the Repu,bJ_:i.c is·g_uashed, and,the sentenGe i• se'f asid3. . .... •/J • 11 is ord.&r.e<l that the appellant be relea&ed, !rom iustcdy fQrthwith,- unless he·is otherwise lawfully held, W. J. }'.[AINA JUDGE J)ar es ,;alaam !.9 l)ecen.ber, 1994 A.ppellan~: Absent Miss Kiwc:nga, State Attorney, for the Republlo. • !