19940622 TZHC Dar es Salaam

HlGi: CJuE~ CRF:::~;;1,.:i:i A~,~- ~AL. lW. 205 OF 1993 ·Original Criminal Cabe N0.681 of 1982 ,~ the District Court of ·11a1a :istrict at Kivukorti Before H~ Kalo~bola, 3sq., ~:R- Magistrate ... 7ersus TlIB HE?U:B1IC .................. RES::?OlJDLNT This id an aJ~e~l bJ ( J i j ~oha~ed ~ibwana, against tbe .l • # • • , jud6ment of the l~wer cour:-·li b..1 wliic1:1· he was c~nvicted of the c ffehce of ·breaking into c1 building an(i stealin'g therefrom, government proi)erties wortl:i. :1sl:i.2,143,100/=, and sentenced t·o seven J ears of impri aone1ent, w2. th no trder for com:peus-ation. The main argument,. in cl1alie1iging the j·udgment ot the _lower court is tbat the _t-1ro0ecutfon h~d failed to p.r-ave the case beJ ond all reo ~ona ble dou~o1 t. Ior the Ii'.eiJublic, :·iis;j l1k.Hawa, learned State, Attorney sup~orted both conviction 8n~ sentence Qn the grounds that ,., on the material p~r~o~ oi :he iricident ~hat is between 6th and 8th June, 19~2 the apvellanc·was the onlJ.watchman on dut_y.guardin . 6 the GodO\l.ln . belongin 6 to the . NiniutrJ of ~ucation and Culture, ::;ituatBc.t at Chanb lo.mi}€ ~rea: It hos further been cont~hded for the R~public tLa"t tLe breR~ing oi the building whic~ ayyeared to have been tione by removinb a corrugated iron sheet anu a ceiLin£ bJ~rd,·m~6t have be~n done with force so that it was uii1icul t Lor "tl1e l;l.f\P€ll.ant to iaLl to be aware Oi 8Uch an incident. In aqctitton, ·ihe le.arJl,Bu c.oun.c:iel has '~te.neiea tll~t there beinb ev\dence a~· testified bJ thG :._-i\i4, one :ro. C .. 97 4~ :i)/Cyl ~li bartki that motor \Z.ebicle t,Jl"e [!larks hc:1d ·been notel, e.nt-er:ing the go.down ·, . . , .. premises the appellant oui.;l· t t~ helve hecJrJ.. the d~ve ol such motor vehicle as it en"tered -;;l,e vremises anli the'.t'efo.:r,e .should have exvlained ho~ such motor vehicle enteretl the godown premises. It is l-n the libhu t.,1 the foJ';'egoing tl1at the learned counsel sup~or-ccc. both the conviction and sentence of tpe appelian"t .• r - 2 - <.- }' In reply tl:e G 1Jpe1Lrnt denied that there was any removal o.f the corra{sated iron sheets ana that any m/v ever entered tLe godown '..)r0mises arguing tlwt many m/vs used to er1ter tlie godown prerniti-es in the usual course of business so that the alleJea m/v tyre marks could ·not be said to have been ror 8 mctor vehlcle ~lleged ~u have entered 1or tbe 1mr 1,O;3e:: o'.i. -~he allei:;el,t breaking. . . ' . f0w comin£·~o tLe fa1ts 01 the case it is common • grounci that at the rnateriJl time of the incident the appellant was an emyloJee of the MinistrJ df Education and Culture worKin~-as a watchmarr at the Ministry's godo~n situate at Chang 1 ombe 2·-~a. It· is ulso co~mon ground that between ·the a.a·r;E;s of 6tL and 8th June, 199~, when the breaking in anti theft of various 60ods took place the a;pellant was the 9erso~ on guard duty at such godown. It is to be noted tb<1t the 6th arn.i 7th of June, 1992, were Saturday ~nd Sunday> r~apect~~ely, Hna Bth_June, was a Monday. It wou.lc~ 2_p1-1ear,. according to tlle evidence of the DW2 Jne Liand8li r~sigwa wlio was the 2nd _accused that the appellant was also hapdeJ bj him the keys to the -godown. On the other hand it iG not clear from the evidence and this is a clear manifestation as to how poorly the prosec.ut_lo'n was conuuctect, as for wi.1icli part of the godown premises w~re trie kc~s SLlid to have been handed over to the appellant b.Y tLe JYd2. neither is it clear as to whether during the days the aJpellant was ·on guard duty he.was to remain on the godown premise~ daJ and night till he was relieved bJ another watciE1a4, as to exclude any possibility for any other p.:_a:.cson with keys to tbe godown premises to t sheak in ·in the absence of the watchman. In this regard j ~ the evidence of the ?W3 one ~3hati Rahgimoja the supplies t ,.;.: f.'~" -i~; . ·f(t assis-tarrt is sufficient to cause someone to ~-'aise an eye I' 1 ·_:,,. brow. ~.... t Her.evidence was to the effect ~hat on 8th June, 1992 at about 11 a.m. while in the office of the godown keeper~- the ~Wl, one Ng'wandu Jitwala she noted that the ceiling board for the goaown office wai loose and there was space ~o see through. \'lhen tilis -,vas brought to the attention of the godown keeper t·he. rupl,/ was that there was no problem , with it,_ only to be told t.t1"' following day that the godown had been broken into by breakin 6 tl1e very ceiling board noticed to have been loo6e. '. ,. - 3 - Such state oi tLe evic.E;uce 1.or the fJrosecution poses I the guestion whetbeY i~ b8~ng purely circumstantial, is one that can be saia to st8na the test th~t for it to be safely relied u~on tu io~nd th~ accu~e~'s conviction such evidence must . be one thJt· conQlusivelJ ~- . ~oints to the guilt of the ·ace.used vii thout lec:vi_ni:; room tor a11y other. p·ossibili tJ · as being resposible ior vil1at hc:s b0en. complained of° and attributed to tLE: accused. In my judgment,.witb uuc respect to the arguments by the learned state attorn~y, I am unable to accept ·that the- evidence .before the lJwer court is one that could be said to stand such test for circumbtantial evidence • .As noted above, although admitted, the appellant is . said to have been the watchman who ~as in guard ~uty between the days of· 6tL ~nd 8tk Jµnc:) 1992, ·it' bas not been brought to the fore bJ tl_;e pros'1..,ov.ti,).d aa to whether be was suppos·ea. to guard the goCiO\-.;n yre1:1iB~S 0.aJ ana 1nght ■ •Heither is . .v :.: there evidence to e~ta~lish on w~ich day and what timi during such daJ s. wl1dl'i the· ci. 1,:ip0llcmt 1·1as on -guard duty did ' ¼ S·;._ -the breaking and theft took :i_)ldce. For there is evidenc_e. i:\;', b.v both t.bc:; :.?;·.-1 2md .J!\!~ thc::t ti10· al-legea br€ak.ing was noticed ill the mornin~ oi 8th of June, .19~2, when they re~orted on duty after the pr8vioui weekend. On th~ other hand b,t the evidetice vf -~~1( )? '3 it ai~.i,)ears ·that it was in.~ J the morning of 8th June, 1992 when hb calleu in the rwl's Jffic~, the goctown an~ th~n noticsd the loose ceiling board which; .when he brought to the attention of the ?Wl, the g~down keeper aid not arous~ ·an, surpr~se to the said godown keeper, who instead, re~ponded by assuring him that there was no problem with it, only to be told the fQllowing morning, that. is tlJ.e 9th oi Jur.e, 1992, that the god()wn had been broken into by errtcring t1:trot ·2?11. the roof and the 1 ceiling board noticed ea:-clier bJ. the P\i3 to have been 1oose. And according to the ~j4 ~Le police officer who invest\gatdd · ,;,; the case· it ap_puar8• th::,t 't,Lc: breaking and tlrnft was said to have taken _plact., . bet1 ✓ et:E. liLG doJ oi' 8th nnd 9th June, :,f-1~\- ;t ,~/ 1992. Also· leaving this co~r~ in dorkness is.the ~ant of evidence as to wit~ had tL0 keys to the godown gate and off'ice during t;be two \veb;:enc; 0.8js whGn public offices are I. ·'.\ii:·· · .-:..~,"--·- ..... ~~r'ci(j:~~d. • f\' ~'='-C: i:"'u.:r.thE:r i11is court would wish to .·. kn,. i:M.~~~ . -~:ur{1.:J$-., t4'.e dc:.iJ 8 he wus SUiJ)OSed to be rt:>:rt guard ,. .-'.~~t\y",~~".appeilcint W8S to remain \Vi thin the godvwh premises \, t ,;,i,.•11,:. • ' . ' ~~~~~~and: nq_/:Sl':i.t. r,'e,t s~ct evinenct: is i•rnn~ing·.• Then:·.there io the isi:ue oL tlw m/v tJre marks entering ·" ' ~t;/the godown premises, as ter::;tified upon bJ J?W4, that t.o me -~~piears to have been efi8<!tivE:lj rebut1ied by the appellant <I/~ .,wHfr~·-.ppinted ~u-:t:, durin~ this GppeBl th;.:,t such pi~ce of .t', •.:~f~ . '~vi-dence was ·not true beCc:3USe several m/\7s used to enter th~ godown premises, so that i~ would have.been difficult to specifically identif. and taik ◊f any such~tyre marks. In fact none of the otL0r witnesses working at such godown ever appeared to.have br2n alarmed bJ any such tyre marks. As a godown place,_ the -vpJllant's contention sJunds quite reasonable. It coulG. 1101; bf- suc.h godown anci Jet not regularly visited by motor veiicles to 3ollect ~ari.ous goods stocked at the· godown buil~j~;. Thus in the ~inal analJuis, I am of the considered opinion that circumstantial ns it was tte prosecution evidence before the lower court wa.s considerably inadequate to found the a~pellan1i's donviction for tbe 0ffence ~harged. Neither is this court in a position to think of any Jther ·alternative aspect of guilt on the part ot the appellant. · Accordingi.y 1 allow this ,i 1:.ipeal~ quashing the conviction and sentence of the lower court with an order that the appellant should b8 set at liberty forthwith unless law,t:ully held for another cause. R.J. Mwaikasu Judge Delivered in chamb0rs this 22n~i·da.r of June, 1994 j,.n the presence o{ l'liss Llrnse, Coum-;el · for the R.epur;J.ic and the appellant. R.J. · Mwaikasu, Judge I certify that this id a true copy of the original jud 6 ment.