19761030 TZHC Arusha

INTHE HIH.OURT •OF.TANIA AT ARUSHA APPELLATE JURtSDICTION HIGH COURT CRIMINAL APPEAL NO. 28 OF 1976 C/f' 99/76, 100/16 ORIGINAL CRIMINiL CSE NOo 175 OF 1975 • • • OF THE DISTRICT COURT OF HANAN ISTRICT.AT BABATI Before .A. Masawe sq , ---- -------- 'District Magistrate EDWARD MO$HA-- - - ----- - ------- - - --- ------ ---APPELLANT (Origiial AccUsed) vèrsu • ,•-••. •.: • THE RERtJ3LIC ' - ---..RESPO.NDENT .: - + (Original Prosecutor)

JUDGMENT Jonathan, J. In the lower court SiME Di.VID, PETER MARTIN and H1MISI M0HMED, appearing as 1st, 2nd and 3rd accused, tespectively, twdre. convlif. of stealing by public servant and sentenced to 3 year's imprisonmeit. The fourth accused EDWiD MOSHA was convlcte& on a different count of receiving, and sentenced to a similar term of imprisOnment. With the exception of the 3rd accused HAMISI, the accused have all appealed from those convictions and senterkes and the petitions have been consolidated0 The 1st, 2ndand 3rd accused were employees of. Comworks, Babah. There was undisputed evidence that at the relevant time upon the stock of that station beiri coühtd a W.0 pàro± "asiatic" pe arasaniEary flush vaiuedat shs. 377/- were found missing. These had bec.n among the many things kept in the open out'id,e the 6ffice,. W of• hich th 3d àbisedwas tore-keeper working under the direct surveillance of P.W 2 GERALD. To connect the four accused with the missing thztigs there was the evidencc of PWe 3 MICHiEL and P,W 4 MSJE, both plumbrs employed byComworks a t Babati. According to the former on the morning Of OctiobLr 112, 1975 the 1st ai -id accused c.a]led at his house cntr'ir1g oh; thermotor.äycle they were both riding somLthlng wrapped in some paper bag that had once contained sugar, and asking him to have such parcel dt his house until such time as they would come fot­

1t.fAift&k that daye He granted their, rq.Ues.t nd.:thèy left it there Later that da' at abouttwo o'clock they bothcame:back and took their parcels. Asthey were leaving, he said 1 hc' - then.saw the 3rd accused join thern..Fre ; knew him to be a seeing him accompanying the other two he became suspicions aoout the r of their possession of that parcel, so he al@rted P.W 4 andtogether they followed to shadow them, He saw them end upat a lodging house owned by the 4th accused. The two witnesses then went back. POJ 4 in his evidence is substantially in agreement with the account of P.W 3. It sgems, however, that they were a great distance behind the accused and he- does not himself appear to have seen the 2nd accused. He says he recognized only the ist'abdolrd ccused, Two days later, according to P.W 2, the 3d accused reported tohim that a sanitary flush and a WC. pan were missing. Aftcr a lengthy interk-o- gation this accused seems to have mentioned the 1st and 2nd accused as having taken those things to the 4th accUsed'slodging house, P.W 2 upon this disclosure promptly reporcd to P.W 1, inspcctor PASCHIL. 1he inspector on the same morning of receivino the report looked for and found the 4th accused at a bar drinking. There he tld him h suspected there was a . stolen cistern flush it his guest house, To thit the 4th accused agreed and together they proceeded to the loiging. Upon

entering thc. premises they found the two items each wrapped in papr bags which had once contained sug and put in different rooms The accused answering to his question said those things had beOn brought to him by errployees of Comworks. • S - • • LL • .;:. ,;., -:i. - However, this is disputed by th,e4th accused in h'is",evidence. But there is agreement that he told the inspector he could recognize those people if shown them. They proceeded to comwôrks and there the accused duly picked on all the other accused as being the eople' who had brought him those things. • ••' It seems that P'.W '' pr'ting to the'poIi'o rep.orted't P.W 5 the officer incharge of Comworks at Babati. This withess,.l,ike P.W 2, says the 3rd accusLd toll. him the 1st and 2nd accused had sked him not to report those things 'wer'e'missing from the stock of Comworks, 'this, reportedly because they had stolen and sold them to the 4th accused6 The . Ast,, i%ad-_Arxd accused in their testim:nios denied having had anything to do with the theft of those things, and eoch of them put up an alibi, supported by one witness in the- -c-as' of the' - 1st accused and three witnesses as regards the 2nd accused, that'they' were elsewhere to make itinpossible for thern'to be.present at. the house of PW '3'and. latett'!th'dguest house of the 4th 'accused., However.. the l.earned"'trihI' mais'hrteIaving iven considerable

attentin to the evidnco is a whole f und therc was no truth in the aXib1 and. convicted thetO acued. .1 ould not with 'rbspect cl justified to disagree with this conclusion. The accounts of POW 3 and P.W 4 who do not appear to have had cause falsely to implicate these two accused, 'an'd thos of, the 3rd. and 4th iccused, 'thmso'lVes upportd by the ttinos of the two witnesses of the 4th accused as' will be shown :presenty al thQse account seem to' lae a doubt whatever 'that the 1st arid' 2nd accuSed handed thoe things. to the 4th acused Accordingly, the appL:als re of the first two accused persons/dismissed in their entirety0 Coming to the 4th accused, he said in his evidence that or the relevant afternoon the. other accused peison .cam' tb his', lodging é yIh' the exhibit items and offering to sell them to him for the sum of shs, ,40/-, the 3d accused claiming.he had bought them and saying he was seiJi'ng them oing tQ financial' difficulties. The accused' then kecl' for theecipt " He replied Lt he had 'oneS bunot ther wh,reupon. they departed leaving 't'osethings, behind as and promising . to brinu the," receipt 'with a view to geting th money,.. They had however not come bick when he was approached by ins ctr PAS HAL two days later when,' 'ha 'siid he readily 'admitthd haing".th.be thihg.. He denied,. howeyer, that he had .'. known people .aLhough:he had seen two of them and

he would recognize them if. he saw them. He was eMphatic that he did not, know those things had beenstolon0 Both.DW. 8 and D.W. 9 whom he called tetified that they' had,beon present when the other' accused brought thpse things to the guest house of th 4th accused, Their evidence was su'bsta,nially ideitical to that of' this accused. D.W. 9 went, a little further when he said that on the next dy when he again mat the accused the - latter replied to.h'imthose peoie had not,rQturned. He advised him to report to the p-lice, buton the'next morning just before the inspector came the accused had' not dote so. He then remind him, to heed his advice. Even so he had not reported when the poiice inspector found them drinking in that bar. ' ' . ' '• The learned trial magistrate in coming to the conclusion tht this accused knew or had reason to' believe thoe .hihgs had beenstclen had regard to three main factors, namely, thef act of his being aware the sellers were emplcDyees..of comworks, the fact tFat those things were kept in two s.epa 1ate rooms and his failure to report to the police after they failed to return. Taking the fi .st aspect first, it seems that the lower court when it found the accusodknew the sellers to be employees of Comworks actL.d only on the evidence of Inspector PISCHAL wheh he sèid this accused had t..1d him so. However the accused throughout in his defence said he

id not know them to be emplpyees of comworks although he had previouslyseen one or two of hrin that minor settlement. ' The learned magistrate seems to 1ave rejected' the version of the appellant in these words: •OØ. .1/3 N -3- The 4th accused said that when he was approached by the 1st, 2nd and 3rd accused and offered the exhibits he did not know the accused as Bbati Cornwcrks employees. But it is v -'ry interesting to note that when he was approached by P.W 1 about the exhibits he mentioned to POW I without hesitation that the exhibits were brought to him by comworks employees 0 0 0 0 0 0 0 C The words I have underlined are however not borne out by the record. Now, it seems clear that the worsion of this accused was rejected merely because the learned magistrate had already reached a finding on the statement of the inspector0 That, of course, was a faulty appraoch. The two versions had to be had in mind simultaneous in order to reach finding0 The impression is gleaned from the record that the inspector was not really insistent that the acdused had told him so and it seems to me to have been merely a passing reference0 I wuld accordingly think that in view of the accuseds stand there was doubt if In fact he had told the inspector the words he attributes to him0 The fact that the exhibits were found in different rooms did not, with respect, attract any adverse commnt and I

would agree with Mr. D'Scuza for this appellant that, there could have been nothing incriminating if the appellant had decided against bundling them up in one room for that might have reduced the space in such room to an undesirable extent. Coming lastly to the appellant's failure to report to the iolice it may be considered thai he should have heeded the advice of his witness, but I would think that a lot depended on one's judgment and his failure or delay to report was not necessarily inconsistent with his having received the exhibits without having reason to believe they had been stolen. Three people'he.had previously seen in broad day light appear to have openly offered to sell him those items and on the face of it there was nothing seriously to suggest Eo him they might have been stolen. He may however have felt he should be on his guard and asked for receipt before he could part with his money. There was nothing unreasonable that he should then have agreed to their suggestion to leave the things there while they returned for the vital receipt. The version of the accused was well supported by the accounts of his two witnesses. The trial magistrate observed however those accounts were contradictory th each other. The contradiction seems to relate to which of the accused was carrying which item0 As has however beAn pointed out by the learned advocate those things were

wrapped in paper bg making it at least difficult for an observar to say which item was cerrid by which accused. Such contradiction was really a trifle and could not have been a sufficient ground f or rejecting those accounts, themselves essentially iecc1.0 , and concluding that the two defence witnesses had not been present. The behaviour of this appellant in readily telling the inspector he had those things at his guest house and taking him there for him to see them, seems to ma to detract heavily frm the prosecuticnccs6e that when he received those things he had had reason to believe they had been stolen. He may have been suspicions but that falls short of a reasonable belief they had been stolen. • he I hvo cmpo 1 show it is unsafe to uphold the conviction and it is hereby set aside togthor with the The 4th accused MOSHA should he set at liberty if he is not otherwise lawfully held. 7 P.M. JONATHAN,

J U D G E 30th October, 1976 PMJ/GKK