19820422 TZHC Tabora

IN THE HIGH COURT OF TANZANIA AT TABORA.

APPELLATE JTJRI SDI OTI ON (Tabora Registry) (Ha) CRIMINAL APPEAL NO 29 OF 1980 Cr. App. 20,30,31,32,33/80.

OF THE DISTRICT COURT OF STTIYANGA DISTRICT AT SHINYANGA. BEFORE - MRWAWA, Esq,. Resident Magistrate

DIONIS MASALU SAMWELI- SINGANO 1 . ELLANTS JOHN MAKUNE ... . . . . . . . JUMA. ATHtJMANI

VERSUS THE UNITED REPUBLIC .. . .. . RESPONI)ENT CHARGE: 2 Counts of Conspiracy to coinnut a felony and 2 Counts of stealing goods in transit, c/ss 384 and 265 and 269(c) of the Penal Code. 0

J U D G M E N T CHIPETA, J. The four appellants, whose appeals I have consolidated, were charged 3olntly with three others, two of whom were acqu.itted, and the third had his appeal allowed by Mu.shi, J., with two counts of conspiracy tcr commit a felony and two counts of stealing goods in transit, c/ss 384 and 265 and 269(c) of the Penal Code, respectively. The first appellant , i e Dioniz Masalu (who was the 2nd accused at the trial), was' convicted on count 2 but acquitted on the rest 'of the counts; the second appellant, Samweli Singano (who was the 5th accused at the trial), was cOnvicted on count a..; the. third and fourth appellants were convicted 'on counts 2 and 4 but acquitted on counts 1 and'2. On conviction the 1st and 2nd appellants were each senenced to seven (7') years'impri-sonme- nt, while the 3rd appellant, Juma Athumani (7th accused) and the'4th appellant, John 11akune(6th accused) were sentenced to concurrent terms of five years imprisonment. -, The prosecution's evidence, in brief, was that at the-material time, the 1st appellant, Dioniz Masalu, was an assistant station master of Tanzania Railways Corporation (hereinafter referred to as T'.R.C.) and . . . . . ./ -2- was stationed at Songwa railway station at the material time, and Pius Magesa, whose appeal since been allowed, was the station, master ther The 3rd and 4 the appellants were traders at

Shinyanga. In connection with the 2nd court, the evidence agains't the 1st, 3rd and 4t1i ape1lants was that on 23/8/77, Kilombero Sugar Co. loaded 140 bags of su.gar onto wagon No. 0G. 61827 at Kidatu7 The consignee was Regional Trading ccñipany,Shinyanga. The final destination of the wagon, therefore, was Shinyanga railway station.. On 2/9/77, the wagon arrived at Shinyanga railway station but urprising1y, the label .describ'ed the contents a "pac1ges" instead of "sugar". On 24/9/77, for some une1ained reason, that wagon was pulled toSongwa railw& statiOn, where it was received by the 1st appellant. By this time the label read "general goods", and. was, addre- ssed to "Station Master, Songwa." On 25/9/77, P .W.. 35. 9 who was the 8hinyanga station mater at the time, telephoned the 1st appellant the wagon had been sent to 5 ongwa by mistake and that it should be returned to Shinyanga. 1st appellant promised to do so. . . However, on 26/9/77, the wagon, according to P'W..7..'a..'oods at •Songwa, had no label. When P..W.7 inquired, 1st appellant said tad.eën sent to Sona byrnistake. ' On 25/9/77, the 3rd and 4th appellants approached one Salum Hainduni (P.w.27) and hired his truck TZ24800 for the •express..purpose of going' to 'collect sugar at Soigwa. Oi 26/9/77."oneMasanja.(p.w.28), who was a. driver of..PW. 27; drove the vehicle, to. Songwa.. With him were thehirers, that is.,

3rd 4th appellants. ...... .. At Songwa, they off- loaded 140 bags of. sugarfrom.a wagon.. At • the time of off -. load•ing .Piu.sMagesa, the'station master, and who was ihe 4th accised at the trial was present. In fact, this man warned P..W.7 not to mention anjthing to any one about what he had seen or else P.W 7 wOuld. be endangering his own life The let appellant was not present'. The sugar was then taken away in P.W.2 1 s truck to a place called Manonga where it was off -loaded and kept in a house. That was the prosecutionis case against the 1st, 3rd and 4th appellants and Pius Mae.a fi •'• •/3 The evidence in respect of the 4th cpunt, on which the 2nd., 3rd and 4th appellants and Pius Magesa were convicted, was that On 26/7/77 5 the Sugai' Development Corporation loaded 360 bags of sugar 9 on to wagon No. CL B 55730 destined for Shinyanga Railway station and whose consignee was R.T.C. Shinyanga, On 3/8/77, when the wagon left Tabora Railway Station for Shinyanga, the label read "cement" ins,tead of the original "sugar". It arrived at Shinyanga on 3/8/77 -'i.e. the same day it left Tabora. :.• On 6/8/77., for some reason, the wagon was pulled to Songwa Railwa, station where Pius Lagesa took delivery of it. On 10/8/77, on the instructions of Pius Magesa, the wagon was pulled to Isaka Railway Station. Meanwhile, on 14/8/77, a transporter, one Abdallah Salum (P.4.32) learnt

that two African businessman had a load of 360 bags of: sugar to be hauled from Isaka Railway station. P .W .32 then drov.e his truck to Isaka where he found. the 3rd. and 4th appellants Who introduced- themselves to him as the hire There, the 2nd appellant, Samwel Singano, who was the station master at Isaka handed a pair of scissors to the 4th appellant and the latter used it for cutting the heavy wires to open the wagon. At least 180 bags of sugar were off-loaded and transported in P.W.32'0 truck 'to Manonga. An operations Manager of R.T.C.Shi,nyanga (P.w.38) testified that they were the consignees of the sugar in wagon Nos. CG 61827 and CLB 55730, and that they had not received the sugar. Both wagons were later found to be properly sealed but empty. In his defence, the 1st appellant, Dioniz Masalu, admitted that he was present when the wagon No. 0G. 61827 arrived. at Songwa, but denied having supervised its off-loading He further denied any know- l%ge of waon CL B 55730. He later learnt that the wagon 00. 61827 had been sent back to Shinj'anga. In his defence, the 2nd. appellant, Samweli Singano, admitted having seen wagon Fo. CLB 55730 2 but he denied having supervised its off-loading at Isaka and further denied knowing P.W. 32 or'any of the other accused persons other than the 3rd. acoused., who was acquitted. - Now - 4 The3rd and 4th appellants also protested their

innocence. They accused P.W.8, P.L28, P0W.27, P 111.30 and P.W32 of having comitted perjury in court. They also denied knowing the rest ofthe accused persons.. • With regard to the 2nd count, on which the 1st, 3rd and 4th appe- llants were convicted, the learned trial resident magistrate had no doubt at all that P,W07, P;TV.27. P.W.28, and P.W.30.were witnsâès of truth. I respectfully agree -1 -hcre was no reason at all why all thee witnesses should gang up to frame the 1st, 3rd and 4th appellants as • well as Pius Magesa: But first, to the 3rd and 4th appellants There can be no doubt that the sugar off-loaded at Songwa railway station was from wagon No. OG 61827 and that it was the same sugar sent from ICidatu whose consignee was R T C Shinyanga hat sugar was not delivered to H C Shinyanga but was collected by persons who were not en+1ed to'do so. In short, whoever took dclivery of that sugar was guilty of theft. There is, as the learned trial magistrate found, incontrovertible evidence that the 3rd and 4th appellants hired P.W.27's truck and off-loaded 140 bags of sugar from a wagon at Songwa railway station. There is evidence that they took away that sugar to Manonga This is clear from the evidence of PW.27, P.W28, P.W. 7 and p.w.8. • There is also the evidencof P.w,3.0 which lends credence to the evidence of the above witnesses. Clearly:,, therefore, the 3rd and 4th

appellans took part in the transaction. what they were not entitled totake that • sugar is demontrated inferentially, by their hollow denials of all incriminating facts. For thes.i reasons, 1 an satisfiedp as wasthe learned trial magistrate, that the 3rd and 4th appellants participated in stealing the sugar from wagon no CG 61827, and so were prper1y convicted in respect ofcot2. • .•. I now turn to the 1st appellant s Dioniz Masalu, in respect of the second count. There can be no doubt that the evidence of P.W.7 and P.W. 36 raised great suspicion against this appellant. But mere suspicn, however grave, cannot form the basis for a conviction. 1 would have thought that Pius Magessa 9 who was the let appellant's boss, had far more things to explain than the 1st appellant.. It was Pius Magesa and noi the 1st appellant who told P.W.7 not to mention anything about what he . . . . . . 615 -5- (P.T.7) had seen; it was Pius Magesa who was present when the wagon CG 61827 was off-loaded;and it was Pius Magesa who had ultimately to account for that wagon and its contents. For these reasons, I donot think that the evidence on record, justified the lstappellant's conviction. He ought to have been given the benefit of the doubt. I now turn to the 4th count on which the 2nd, 3rd and 4th appellants, as well as Pius Maésa, were convicted. From the evidence of P.W.23 and P,w.32, whom the learned

trial magistrate accepted as truul witnesses, it is beyond doubt that the 3rd and 4th appellants, using a nodus operandi similar to that in connection with the 2nd count, off- loaded sugar froma wagon at Isaka. From both oral and docunentary evidence, there cai. equally be no doubt that that sugar was off - loaded from wagon No. OLE 55730 whose consignc-es were .R.T.C., Shinyanga. The evidence, therefore, fully justified the convictiohs of 3rd and 4th appe1lant on count 4 as well. I now tLthi to the 2nd ape1lant in respect Of count 4. The evidence against him is that he was the station master at Isaka, that he received the wagon from bongwa railway station and that he was present when the off-loading was done. But it will be recalled that this wagon was trebcokedt from Songwa to Isaka by Pius Magesa. What is surprising is that it is said that one Abdallah Saidi was the person who off-loaded the sugar and a consignment no (Exhibit P.29)appears to support this. That being so, the posibility that the 2nd appellant was not aware of the sinister designs of the thieves. Like in the Case of the 1st appellants,' therefore, the 2nd appellant ought also to bO given the benefit of the doubt. For the foregoing reasons, the appeals of the 1st appellant, Dioniz Masalu, and the 2nd appellant, Sanweli Singano, are hereby allowed. Che'ir convictions are accordingly quashed and their sentences and orders of compensation set aside. They shall be released from custody forthwith unless otherwise lawfully detained. : The appeals of the 3rd appellant, J?ma Athumani, and 4th appellant John Makune, are hereby dismissed in their entirety. B.D. CHIPETA

JUDGE Tabora 22/4,'1982, -6- CERTIFIED TO BE THE TRUE COPY OF THE ORIGINAL, ABORA, S.