19771003 TZHC Dodoma

/1/c,, f)-A-f. Gr. f ~ · IIJ THE HIGH COURT OF TAi;ZANIA AT DODOJ\'.fA Al'PELLAT.E JURISDICTION CJlD.. IN.f.L AI'.;.'l;AL No. 161 OF 1 977 · \ ~RJ;_G:I~/.1:L_ CRIIv~J:NAL - CASE :No. 1 66 '·oF:.·1 ·977- 0F' TfPJ DI:STfICT COURT OF IRINGA DIST::1ICT AT I.RI NGA . 1·. ~ .. BEFORE: J .L ~. MWALIJSANYA • ~- •• • • •. • ..f.,~SIDENT 1JAGISTRAT_, 1 I • : ... :,]: /.~f• \,'•. _DAUDI --s/o P~lDON • 0 0 • • . ..,_ 0 • · • '.' • 0 • . • APPELl,Al\JT ·versu$ THE RCPUBLI_Q ... • • 0 RGSI"CNDENT .r CHARGE: Theft c/s 265 of the Penal Code.

J U D G ME N T JONATHAN 1 _cJ. - # In the. :co1,l.rt of resident·magistratej Irinea D.AUDI PADON was convi'cted of the theft of a t·able: clock and s.entehced to s· months im,-,risoriment. Against the conviction he has petitioned this court. . · It ·se~rns that on the rele·vant hight at B.~)OUt ·nine ·o'clock sori1eone knocked on ~he.''. do or of the room of Pw. 1 , the comp'lainant whose trade ;.Was- that· - of· r8pairing clocks and watches. He was indisposed and .lying ,on -t~w bed, b'4t Pw.2 his wife op0ned ti.1-,e door. As .she was o~)ening it, .however, the caller stormed in_ by violently pushi~~ -~he door thereby knocking her to the f::)_oor tocether th th-; baby -she was vii carrying. H0 t~en gra~bed a .clock from the repair box of the _ . ;· c01nplainant 2..nd made off with it amidst an alarm being raised ' . by .tp_e woman and responded to by Pw. 3, her brother-in-law who occ1,1_pied a room i_n· tha-'c house. This witna,ss seems to have come out in time to see a· nan disappearinc but out of time ~o identify hi:-1/ ~- ' . _The ap~Jej_lant in his' evidence denL~d.·he had been .,,' involved in ·li1:; incident., if ever it had occurred,and allegerl he was being fraoed up by the_ complainant and his w:i·fe,:Jollowir:c; an-:. incident at the focal ·;·pombe shop where ho had had, o"ccasion to beat her aft_e:l she poured porn.ho on him. The complainant: he continued:,· had

later quarrelled with him over that "incident but in .the end they were reconciled by Dw.2. -· Dw. 2 testified in agreement that he had infa.ct found t}?.e complainant quarrcll;ing with the app ellc3,nt on an allegation that_ the latter had bsaten the wife of t..½.c) fOJ;'Der. Dw.2, it r;1ay· be noted, was at t_he· time he gave evidence remanded in tr...3 · same prison 2,s the appellant. The trial court flatly rejected t}?,e. suggestion tm t the appellant had had occasion to beat up Pw.2 and that she and her' husband had been bent upon revenging. It ,accordingly _ convicted on the :prosecution evidence. To me, _however;.,,.the case poses considerable difficulty and I find it necessary to review the prosecution evidence in greater detail. According to the complainant, during the day time the appellant_ had told hiE1 he would ·be paying him a visit at 9. 00 Il .tu. · · \. ~ .' . . • •• 2 2 He did not how·,;ver give the circumstances giving rise to such conversation and the quest ion may he e.slrnd: could they really have net during th? dny if, as i;rJ/; oviclence shows, the conplainaJJ:t was bed-ridden? The purpos.:; o:f the intended visit so late was not in any case sta:t,1d. Turning to the accn,mt o:t P1r.r.2, she said the. ca;Ller replied to her that he w:,_,;::-; "ohairr::ian", by. whiah· naoa. the a·--?)c=.:'l;lant· a1·m Jo.rs to hav1::: been knmm locally. Pw. 3 was ·

u1'ag:re~ment that lF heard such re_p],.y. She said she-was hositant to open but 0 s he pressed to be allowed i,n .ultimately s;1.e opened and after she f~ll doi:,;-:; the appellsnt stampeded on µer. This aspect of her evidence does not a:;nsar supported by ·her husband I s acc'ount, and I would in any case think· ,:;h2.t if there had been any stampeding she would hs.ve sustain8d some injury and would probably have been unable to nctke the pursuit she claimed to have made of the appellant. · · The greatest fl8.w in the prosi~cution 'Nfo.ence does however lie in anothor aspect. The appell8l1t did cross-examine both the complaiYJ2J.1.t and his wife specifically· on vi.~~ther she had had an incident with. him:,at th'? pombe shop •. That she denied as did her husband ,when he said he had received no report of si-1.ch incident and he had had no qu8,rrel with the appellant. Tho appellant then asked if she u.se_d to sell. pon1Jc at that pomb,-; shop. ·Thi,y both emphatically denied that · ,.· sugesestion. }'w. 3; in contrast ~Tith this, re:;ilir.)d to the appellant irt _hi;s turn th..1.t Pw .2 used to s(;Jll :;_--iombe at the local club, i,Jt ,.would s ,~: rib then Pw ~ 1 and P~r. 2 ktd. falsely denied the l:.-:-1,t·G.br ha,d b cien selling at th·s _c.,or.:1b c shop and· I - would prasu;.t0 such denial was intended to ~Ju·ctress their stsi,nc1·t11'it therf3 had bsen no -incident at

-~l1': pombe · \·.,·f involv:i;.ng·Pw.2_. onc1 the. appellant and that tho witnesses were not hef:ng vindictive~. It }1ay·' well he, th:ar .fore~, that,- the- a::.rpe11ant had assa,ulted Piii.2 '2.nd there had h2,d to be reco•• nciliat'ion. The ap~1ellE,,nt;. I would e,bserv~·- :t±l :h,cap:Ltula tion, must he,ve br::en . really stupid to have prom.is Gd ,-c!:10 ·complainart _a visit at 9.00 :p.n., to have duly mc1de it, to have then said he was Jdl\:i on~)_:- and to have broken into the well-lit house and stolen the. clock. I would how8vcr net be persuadC;Cl that he could hc=,.ve been so stupid as to let himt:H~lf_ away so glA.ringly. The culprit in storming _in; grabbing and them r.:1aking off h::.c~ the desire of hiding his identity t arid J woulrl . hold suspect th,3 elaborations made. by the conp~inant-, hif:\, ,,; p . and youngm:: brother. Pw .2 upon being thrown to the_ ground' _may well h2v':.: 1.nen·ftoQ. fear-:-stricken to recogni'se the invac.c.::r Her husband, how;:;ver, clmm~d, to ha,ve identified the appellant. H'J dor:s not . 4owev,er appc-)ar to have done anythir~. , He could only watch _all that ha,,pening, a little unconvincL:..,_) if he·was 2.wal:e ;:i,s he sai,d, · this notwi thstand.int:; he was . iiidispo sed . · · · · ·· ·· 1. . 11 consider'::;d, I thirik the trial court b:2.d it given the evidence th0 close scrutiny it call-3d for, would have found ·

th-,:re H2.s doubt·· if the circumstanc :JS he,d been favourable for Pw.1 and Pw.2 to identify the invader, an1 if I may s:7.y so, it is perhaps not al togeth-2r insignificant t:·1,~.-~ .. the :i.p1::e 1:\-azj.t was not arraigned until 2b 01...-::c 2- week later. Accordingly~~ ,:_l~h,::i appeal .is ~llow~d, the, ccnviction and the sentence heil'J:G ,ss-t aside. The appellcmt 'is ·c.: be set at lit ::>t~T forthwith unless he is otl1.t.rl:;_\1awfully hold. Po M.· J'ONA~N JlJD(}E. 'I •' D'elivc,rsd in open court ,~his 3rd d_ay of October, 1977 P. M. /.i.tp..1',\" JON TRL.N . JUDGE.