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/ • • • •.• IN THE HIGH COURT OF TNZINIA • : M WA W ZA PPELLTE JURISDICTION . . HIGH COURT CRI4INiL APPEAL NO. 378 OF 1977 .Qf.CRPP. 379bf 1977. . ... .: ORIGI1\L CRIINiL CASE NO, 28 OF 1976 OFTH IS1RICT.00URT OF BUKOBA DISTRICT T .. BUKOBA BEFORE • • c'.: 0. AGISTRATE:o EsQ., S11 DIWID lKSHANDETE NKULILA A NDOT}iER ..:........ PPELL4NT VC r S US .T} REPUBLIC ...,.. ..... e....................... RESPONDENT C}LRGE:— Stealing, c/s 265 of the Penal Code. JUDG4ET . . • . .• .• . . : sISYJ. . . The two appel1ants a n 4 a third person who was acquitted by the tria]. magistrate qere chargca with sImple theft contrary to section 265 of the Penal Code. The appellants wre convicted and each w .:entsiccd to, four years inpr.sonment. Thy are, now appealing. Evidence wa led at the trial to the effect that the first accued who incid.ntair, is th' person who was acquitted and 'tlic econd accused Wire ?oli officers whereas th' third acousAci was a soldier of the Tanzania Pop1es Dakcnce Force. Thy were all baed at Kanyizo Primary Cottrt, in the Bucoba District of the West LakeRegion, which 3.6 close to the border with Uganda. On 23rd Iay, 1975, acting upon information recivod, the second and third accused persons tho, incidentally, are now the appel1ants, went to the house of th complainant and arrested him on suspicioun 'thdt he had with him some Ugand.ancurrenpy. The two accused took the complainant with them to their olf ice and handed him over to the first aocusad who was their e'nior. bfter denying possession of ny foreign currency the comp1mnant was placeLl in the lock up while the second and third accused persons took th' complintnt's ofl P.W.3, to the complainant's housi for a seich. This yielded $hs.4180/t in Ugndan cu.rency, wnich was then soizd by the lw anforcemrnt egcnts. What actually hpened oh their 'return is subject oV sme contradiction in the evidcnceof the complainant, and his sbn t P.W.3* according to the complainant when the second and third accused persons arrives with the oney the first accused had him, i.e. 'th coplein- ant, removed from the lock—up. They all then, tluding P.W.3 9 omt in a room where 1st, 2nd and 3rd accused counted the morley before second accused handed it all over to first accused. according to P.W.3, howover., he did not enter th room where first,: second and third accused persons and the complainant were. Consequently he did not witness what went on inside the room. .....NJerthe1ess the story that the money was handd over to the first accused was suspport'id by both second and third accsed. Enventua11y.the,onp].ainnt.was r*rturned to the lock—up where he spent the night. On -thQ following day he was brought before the first 1 second and third accusd persons. The first accuend then told hi that he was free andadded •"usiende huko-kusc'ma mambo mengi." The complainant asked forhismoney to which the first accused retorted, "Usiseme pesa, utarudishwa ntlani". The complainnt went awey without the money. He went and Eôitd the matter to the local authorites. Eventually the mat -ter rache. the ears of the O.C.D., P.W.4, Envontually the acos w're rrst'd - ubsequntly ciared. — 2 — S Both second and thidàccusrd - to; fslons in, their.rspctivc dfenctis ~ admitted that they went to the complcinni's house on the material day and apprehended him. They handed .him,...i... complainant, to the first accused who was their senior. Thereafter they went and seized the money in Ugandan currency which they also subsequently hde: 'er to first accused. In a cuprise judgoment th t.rial nagitiit. said. :that he waa not satiefiod that the money reach the first aocuse.dbecause the first accused himself denied seeing the money and, secondly, because P.W.3 "contendd that he did not s th" money when his father, P.W.1 -Was taken to first accused." Tó'laried magistrate, 'h ever, found that the case against b0cond and beyond reasonabl' doubt and proceeded to coffvict them. In their moiorandwn of appeal both appellant contend tatiite evidence on r-cord is insufficict to:establish trieir guilt beyond doubt. 'I annot'fbëh t;is-' stige: to pe.3n4-.. out. that the appeals hoitle with merit. ccong..t. conplainant himself the appellant in fact gave the -ncney to the first accusd. or some unknown rcsons, if any at all, the tr.ia]. magistrate cnose to ignore mis iiiportawt pierce of evidence. It seunda possibl" that in ccnviàtg' the ap1arht-. the trial magistrate was in± -luonccd by the £ct that the appellants were the on o who went and tuI1 eoied-thc money frcm the complainant's house. If so thon the learned magistrate erred because it is c.loir from the aidence on record that up to the point when the appeIlhanded over the money to the;ir senior, %ho first accused, they ware acting in due course of thair duties. What then is the evidenç atainst .thesd'appellarit in the caa? I find none. The complainant in his eidence said Ithat it wa s tho first accusd who;: received the money.. On the following day it was the first ao'cuee,d bow threatenod him.withf.uxther confinement if he 'ihsistond on demanding his mc.ny bacice. The..00mplainant.even wexit On to aid'that the appellant "did not say anyt1ng in relation to the money." Now, doDs the mere fa.ct that the appellants kept quite when their' scnior j first accused, refusea jo return the poniy to th' ocmplinnt 'nan thet they as wer e actirig'in concert with him, i.e. first accused? On the evidce "on record I answer. this question in' the negative. With respect to the learne.d trial magistrate the evidence on rcórd 'plaves the blame for the disappearance of the squarely on the shoulders of the first accused. Fortunte.y.f.or him he was acquitted and the state has not • . appealed against the said acquittal,,. Novertlieless, suffice it to 'say that tne evidence on r'cbrc1 is not sufficient to sustain the convictions against the appellants. The.. ç.on -vic -tions are therefore quashed and the sentences passed on -the appellants are, accordinl set oide • .' In the final rcsat these appeals are allowed. Consoqueiitl, it is hereby directed that, unless t'hcy are otherwise being laful1y held, both appellants should, be relc.ase.d from custody forthwith. fl. .L. 01 0 14 JUDGE • ,. . . rtified true copy of the Qrina1. DISThIC REGISThPR\ NZ .'•-.