19981202 TZHC Tanga

t IN THE HIGH COURJ OF TANZaNIA

AT TANGA

JURISDICTION CRInINAL APFEL NO 27 OF 1998 • (OPJGIN4L CRLiIN.L 0A NO 309 OF 1996 OF UJIL DISTRICT COUJ3T OF 1RIIEZA) CHILES ItJLWA. . ......... , .ApPEILJU'JT (Original Accused) versus TBEREPtji3LIC 1MUNT (Original Prosecutor)

JUDGMENT TA In this appeal the appellant, CHaRLES KULWA., is appealing against the decision of the District court of Viuheza which had convicted him of the offence of shop—breaking cls 296(1) and 265 of the Penal Codc Consequently, he was sentenced to fivo years' impri.souinent. Hence the appeal is against both convict ions and sentence The facts of the case, as amply established by evidence during the trial, are briefly to the following effect s On December 59 1996 on or about 5300 à, the sJ:iop of PW31 JAIAL ±LEMU which is within the k1uhea township at iLuheza District was broken into '!Zr tialeves and large quanties of merchandise was despoiled. therefrom 3 It is in the testimony of PW32 ABAS IIASSAN who owns and rtis a, shop at Nwaru area at IIuheza that at the mid—day of December 5,1996 the appellant approached him and intimated to him that he had a sizeable quantity of vse1ine oil for sale. PW,2 told the court that be declined the offer0 - 2 - The cvienoe of PW.4 MLBY DANIEL was to the effect that on December 5, 1 996 on or about 900 the appellpnt and one ELIAS (co—accused at the trial Court) visited her having in - their possession a tin of cooking—oil • According to P4 the oil was of the "I" brand0 Thereupon, they asked her if the could temporarily store it for them e It is in PW.4' s test imony that she turned down their request for fear that it was ill—gotten and they

went away with their property. It is also in her testimony that on December 10,1996 during the night the appellant bumped into her and assaulted her ailegedJ.y for having devulged information to the Police culminating to the arrest of on suspicion of having been involved in the FW.1' s shop—breaking incident, In essence the foregoing is the evidence led by the Republic in support of the charges preferred against the appe1lant The appellant vehemently denied having any involvement in the breaking and the subsequent theft of PW.l' s shop. It is his defence that he is being charged on mere suspicionw On cross—examination he told the court that he had assaulted PW.4 because she had abused him and not on any other cause. The trial magistrate found the circumstantial evidence against the appellant supportive of the charge laid at his door. The appellant has maintained, in his memorandum of appeal to this court and during the hearing raised against him is insufficient to prove his guilt within the standards required in any criminal trial, namely proof beyond reasonable doubt. The case for the Republio/RGspondent was advocated upon by iir, Kitainda, State Attorney, who contended that the evidence against the appellant, through circufllstantial has amply proved the appellant' s guilt to the hilt. I have dispassionately considered the evidence implicating the appellant. I venture to say

that the evidence against him, if anything, raises suspicion against him. But that is a fax cry from saying that it has irrcsist.b1y and conclusively proved the appellants guilt 0 ***0/3 - 3 - etblihec1 it is now anbs principle and infact d.icthtes of prucnce that rTaVO i-b 1)0 Cc,i'l not Be a roun suspicion alone, howeveor convic'ion. (See: TITO s/o DOUGLIS LYLL:JO V,R. (1978) T.L.R. no 0 53). There is no d.oubt that in the present case that the appellant!s conviction was based inorely on suspicion and on probability rather than cogent evidence0 Clearly, the conviction can not be allowed to stand. In the light of the foregoing, this appeal musb be, and accordingly, is 9 allowed4 The conviction is thus quashed and the sentence ilmposecl thereon set aside. If the appellant is not otherwise Lawfully detained in eu -tady, he is to be released forthwith 0 DELIVERED at TANGA this 2nd day of December, 1998 in the presence of the aipellant who is present in person and AnKitainda, learned State Attorney, for the Rcpui3lic/Rcspond.ent. ( J.J.IWAWA )

JUDGE I certify that this is a true copy of the oriinal. (A0 1 0 iç si DISTRICT_RGISTPLR