19921207 TZHC Dar es Salaam3

(re) ClUi\:INiU, IQP~:..t rm., 6 OF 1992 (From the cleoision of tho District· Court of i{ilombero at Ifakaru in Criainal Appeal Noo 'Xl of 1991 Original Ifaknra Cr. Cnse !Jo. 124/91) versus - J U u G Ila l N T l'r.mJJJE, J • The two appellants, GI0:WIJ ~CIIJJ;_UJ'JG~ and S~&;Jilf~ SluJ,JM were f ow1d i:;uil ty of bure;lacy and steaiins C/ss: 294( 1)- and 265 of the Penal Coc1c by tho Primary Court of Ifa.kara. They wGre sentonc0d to five y0~rs ioprisonrncnt for burglaJ7 and six □onths inprisonoent for stealing, the s~ntences wera to run concur~entlyo, {)n appeal to the )istrict Court ot Ki.lombero the o.ppenl of Gic1ion IaborenBG was c1im:iiGs~. ;.a - re5arc1s the conviction of 3.J:L..ill,iiiN GALlli✓• the learned Distriot Eagistrate quashed the conviction relatine to burglary and stealing and convicted hio of rec~ivine; stolen protJerty C/s 311 of the Penal Code and sentenced hio to five years; impri• sonnent. 1'ls th0y were agsrioved by tho decision ot the Oistriot Court both Gidion Kibercnge and 3oleoan ~alum have ll0\-1 appealed . to this court against convictione Nono of the appellants appeared at the hearing of their appeal.so· I:-liss 1-':akwaia who represented the Republic/respondent did not support any of_ the convictions. As regards Seleaan Sal:w:i, Kiss Mokwaia did not _support conviction on the ground that the prosecution did not adduce any evidence to show that the appellant knew or had reason to bel~eve that the radio ~as stolen. 3he cited the cas0 of ALI a/o lUMA.DriANI V R ft960] HCD n 430 .in which it was held that there must be· satisfactory evidence 2 that the property was in fact stolen or unlawfully obtained and that ·Jthe appellant know or had reason to b01ieve that this ,1as the caso,.,. Afto:I:' E~o.incr through the rGcord of procee·1in(.sS in tho Primary Court ancl in tho jistrict court, I am satisfied that no f evidence was loci by the prosecution to prove th~t the appellant !-mow or had r~ason to believe that the radio was stolen or feloniously obtainocl., Accordincly this_ appoal suc(:cecls ancl -1 allow it. ilS roenros GL,IJN ;:nJ.JJ~G!~ 11;1ss I~iaktmia did not support conviction on tho ~ouna that tho prosecution f ailod to· call •a,:;~::. M¥ witness who sow the burBlar~ whon they broke into the complaina- nt's house. The accusod ralioc.'. on his.nlibi that he had left with one ICandukn , on 7 .6.91 on a fishing trip t1horo they otayod up to 13•6•91. l~ tho burglary was on :1.106.01 tha prosecution ought to have led evidanco to show that tho accused had. not gone on his . fishing trip on 7 0,6091 as clnirned by him. iJo such evidence was ac.1duc~J' e;nd the appiallant .' s alibi r0main3c1 · unchallenged. Accordingly this appeal succoods anu I allow it~ In the final result I allow both appeals and.quash the co~vietions. The sencenco~ of five years imprisonment aro haroby set asi<lo and I order that the appellanto, •3JUI0N rCIBklGl~Gi~ nncl SJLitlfjJJ 3JiLUM b~ released forthwith unless they nrG1 otho:rwisG lawfully helcl. lJoliverc:1 in chambers at· 1,;oroe;oro this 7th clay of December, 1992 ln the presGnco of: Miss I:'iakt<1aia for Ropublic. Appallants absent. ~ 7/12/1002. -- \ \I I ',