19771220 TZHC Dodoma 1

• •

IN THE HIGH COURT OF TANZANIA '1

AT DODOMA

APPELLATE JURISDICTION HIGH COURT CRIMIN)\L APPEAL NO0 122 OF 1977 ORIGINAL CRIMINAL CASE NO. 60 OF 1977 OF THE DISTRICT COURT OF Ifl?WAPWA DISTICT AT MPWAPWA Before A.M. SANGA. 0 0 0 0 0 0 0 0 0 0 0 ,DiStrict Magistrate DAUDIMANYIKA.................. , .APPCIIant (0 riginal Accused) Versus THE PEPUBLIC. 0 0 0 0 • Respondent (Original prosecutor) ChaLO: Shop Breaking and Stealing c/ss 296(1) and 265 of the Penal Code Cap. 16 Vol. 1 of (T) Revised Laws.

J U D G M E N T J . On 8th December, 1977, I quashd the appellants' convictions, set aside the sentences, and ordered their imrcadic.:e release from custody unless otherwise lawfully . detained. I reserved my reasons for doing so, which I now give. In Mpwapwa district court the three appllants,Daudi ManyikL-., Francis Chiswaga and Augustino Mtwale, were jointly chuf,'t with arid convicted of the offence of shop-breaking and stealing c/ss 296(1) and 265 of the Penal Code, and were each sentenced to three yars imprisonment. They now appeal, and •• their appeals have ben consolidated. For convenience, I shall hereinafter refer to them as the 1st, 2nd and 3rd accused person rosp.ctjvely, which is the order in which they appeared at the trial. The facts are largely not in dispute. In brief, they are as fllows. Mtanana ujamaa village in Mpwapwa District owns a shop, or so it clii at the material time. InFebruary, 1977, th 2n6 accused was the shop manager, the first a:cued was a watchman of the shop, and the 3rd accused was a committee member of the shop committee, and sometimes used to do the duties of a watchman of the shop. On 16/2/77 at about 3.00 p.m. there was a meting of the finance and planning committee of the village. Among those present at th it meeting were the 1st and 2nd accused persons. At the. m;.:eting the 2nd accused reported that there was shs. .4,272/45 in the

shop. The meeting ended at 8.00 p.m. and it would appear that the 1st accusd was the watchman on duty that night. The next morning the 1st accused reported to the 2nd accused that the shop had been broken into (luring the night and that all the money had been stclen. 0 0 ./2 3 - To rake good some loss ofproperty which was under one's control is not, without mor, a confession to the theft of such property,'- and in the instant case there is no evidence that they confessed to the offence0 Their decision to make good the loss, therefore, cannot be token to mean anything more than thot they were respensibl' for the safety of the stolen money. On my own view of the evidence, therefore, I am not persuaded thet the circumstantial evidence Was incapable of innocent explanations. I think there were, circumstances which weak- • ene'J the inference of guilt0 The accused persons, threfore, • should have.heen given the,benefit'cf the doubt0 Not surprisingly, the l.arned statd. attorney did not sUpport the convictions0 . •, It was for these reasons th.t I quashed the convictions, set aside the sentences, and ordered the appellant. 7 s9 immediate rol •ase from custody unless otherwise lawfully detained0 B. DOHIPE A JUDGE . ,. .. Delivored in open court at Dodoma this 20th day of • Dcceror, 1977. • • • • ' S • B. CHIPETA • JUDGE