19770629 TZHC Arusha

• . IN TTLE O.TfTf(Jp(T1 (T I'TT

FPELLT HIGH COt) CRf INL_t2PPHL NO 12 O 1974 (Original Criminal Case No0 943 bf 1973 of the District Court. of T2ngo District ht TangaJ Befdre: T. Me I. NGITtMI Esq, - District Mgi'strcte0. AM s/'O) LUC.S. .APPELLhN' .0 0 C 0 0 0 0 C 0 0 0 0 0 0 0 0 r. 0 0 0 0 0 0 C. versus ,.,... TIlE REPUBLIC 0000 00 0 0 0 0' 0 000 0 C 0000 0 000 0'0 0000000 Li,jONDjNT d UDGeJ . MNZAVS, J. - In this case the appellant and two other • people who have not appealed were charged with bn,icted of workahon breakng c/s 296(1) of thb Penal Code'he' appellant who"odmitcd t -iree previous conVictiOns involving moro1 turpitude ws sOntonced to 5 years imprisonment0 The other two acused who wore found to' be' first offenders were each so' ',nced to three yc:rs imr'Lsonment0 • The appellant is a 'lira ; ainat l3oth. th. Oonvict ion and the sentence0 In his submission the lcrncd tatc t'orney suoortcd the conviction in so far as the aapeli'aht was concerned but declined to support the conviction of tb': two a caused who hav-e not appealed. There was no di'spuie' in thin c'ac that in the night of 2/12/73 a workshop Of. one, Remadhani'Mohemed, PWO2, was brokon into and two 'tableO and a frmc of 'an office chair stolen0 ccording to the evidence of Zuberi Bokero,' (PW.'5), on the morning of 2/12/73 he was driving a .'.goVO.rnri'cnt 'landrover • to Tanga from Korogwe when he' met thO 'people who' asked for a lift

to Tango. He gave thena lift The itncas told the court' that one of the three pco1e said th t' thc two tables and a frame S'or. on' office choir they were carrying belonged to him and th't S '.s he whoa cskc1 for a lift on his own behalf and on b.ch '5f: oh the others0 He, in court, identified this man cc tot. :iwcl1 nt The witnc;:s fine identified the othco t'c DoOple as the the people whohave not appealed0 ' The complainant iticot i od ti-ic tvic tables and the frame for an office chair as the vary ones' which bad ben stolen fr m his workshop after the breaking on the material night. As rightly argued by the learned Stpte httorney there was in this case ample avidence implicating the appellot, dom Lucës, with the offence of workshop breakinge ccording to the evt:enco of the arresting Officer, (PW.7), when intorroc t. 5 the c'owolknt sid tht the two tables and the f'rw fiiona S to him0 ThTO: the 2'mjallant claimed ownership of t"u O'i ( jr , a is ' o a'viont from hc driv a r PW05', the person arfi gave a lift to the accused0 Though.i: could •';'a ;"'; '"r - - -2- Though it could possibly be argued that arresting officer (w0i), was anThterestedparty in the outcome of the case and therefOre prone to •givinge•vidence in suppOrt of the prosecution case, there was no suggestion, loavealone evidence, that the driver, (PW.5), had roaOon to tell lies Ogainat the appellant0 I agree

with the lcrnad Res:ident Ma ; iatrnto's finding of fact that the npnellnt claimed owneraiip of the goods0 s the goods were Tatrer identified by the comfisinant, (Pw02), as the same goods stolen ram his workshop aftea the breaking, and as the appellontwaa found in pox,csnion of tI cm only a matter of hours after thue breaking, the only reasonable inference under tho dooLcene of r cent po s. sion, in the abOOce of, a reasorvhle dxpinti.on as to hbw,hj cnfle .t&'hbe in possession Of thom, ia tO. t the appellant 50 - not only the thief but also the person who broke intothe workshop0 The appdal against conviction is dismissed0 s for the sentence of 5 years imrisCthd , ritTthe gpp.ellant admitted threeprovious , consintion involving moral tupitude0 ...Taking.appdllant' nasty record into account I agree with the learned Sttc tLoin..y ci t the sentence of 5 years prsona;nt is not :. day too long0 The sentence -ihich needs confirmation by this capit is horoby confirmod0 Pegardinr, thu t io cc:nn ud who avo nat q nlyd I agree with the Republic suhmision t nt tho wis o nq evifud6w implicating them with thy ofiecL ch i icJ ThaTirs Vot. they were in the company of the appellant . hen tey orcsted th- rëw suspicion against them but as it has times without number been pronounced by this court and te court of appeal suspicion no matter how grave cannot he the basis of a conviction in a

criminal charged. The learned Resident LTgistra remark in page three of the typicd judgment that "bccause the two accused told the court lies when they said.t hat they were not with the appellant when they were arrstd showed that th ey were implicated witi. the offence" was cle rly a misdirection on the burden of proofin a criminal charge I agree with the learned trirl magistroteb observation tht the too appellant's defences ware not vary impressive but sa repeatedly mentioned in other judymLnts by this court in a criminal case an accused is convicted no on the weaknan of the defence case but on the strength at the pro :;ecut ion case On the evidence I agree with the le'rnd at to attorney's •submiifttan that there was no evidence connecting the two other accused, Rashidi s/o Saidi and Fathil s/o Hsenni with the offence charged0 Unfortunately the two accused hove by now already served their sentences and . 1 therefore make no order. rusha . ... . 29/6/77 ( N /3"." s ) JJJJT \ Appellant 4 1 Atsobt and unrcpicsentqd. Kibola - for the Republic/RoapOnent