19891229 TZHC Dar es Salaam

.. ~-'i•..c;LJ.,rt'I'b J"UJ.<llii.,ICTION HIGH CuUl<T C.klMIN,~L .i·LJ:-J.~l:i.nL Nv. 62/89 v.1....IGIN,-.L CiUNIN.11.L Ci-J:i.l!; Nv. 1214 ltl<' 1988 1.1.f T& uISTi,ICT C<..,UhT LIF IL.h.LH :UISTlUCT 1,T KfoUTU ri.i:il!\.,.h.i!i K1utU,1. i;S~. H~L.11:i:NT Mi,GLSTilATE versus 'l'HL UlHT~I.i H.i!ii?UBLIC., ••••••••••••••• ., •• l{.l!iHPGNi.,,t;NT (vrieinal ~rose<:uto~) r. The ll}:-i1'ellu11t Humisi·Mohumed Njelela wus convicted l)y the tii 6 trict Court of ll~la, at Kisutu, of stealing contra Section 265 of the ~enal Code 1 it bein~ ~llei:,ed that he stole dyin~ mu chine, f uur spanners• a hammer anJ. a l chisel,- ull to,:;ether valued at about 78,050/= un 22/9/1988 at abwut 11 .• 0C a•m• &t Inciira uandhi Street, :Uar es Salaam, the prup8rty o:f National Supl,Jlies Com~any. he wus sentencetl to im?risonmcnt for three years, following his c~nviction ~nu,agGrieveu by th~ conviction ~nd sentence he appeals to this cvurt. ht the hearin~ of the ap~Gal he was reprtsented by Mr. Nbuya learned "4c.lVocate. 'l'he .nepu'blic wus ..,represented by Mr. Mallaba, learned State httorney. ~he fo.cts of the c~se are as set out in the following passage from the ju~~ment of the ~istrict Cuurt:- 11 ••• Ithas been testified. by l-w.2 antl :.t.-'W.4 (the former beins the administrative manat;er of Jambo Inn anJ the latt;:;:r being the uirect0r an~ a~parently th~ owner of the Hotel) that the accus~cl hacl been cr.iployeu. by ".t?vl.4 on temporb.ry term basis· by tL1:1n it then it wus abvut vne year a.Bo• un the 20th $e~tembcr, l988 tht suiG accus0u was civen work cf replacine the old water pi~es with the new 1oµes. ~w.3 testified th~t he was a di!iver V-e~,c.l~ 1.,f the com1Juny s ~:J!d}t un\l on thut duy he tlr_cve th~ accused o.t tr, 1 I the ~rea of the work ~ith the saiJ. stolen instrurn~nts. In fact he w&s assidnetl to work at th~ Jitectirb (~w.4) ~lace~ 'l'he accused dit thut wurk for almost twu Juys an.:.. it was finished _on the ?l~+ 1 9P~ ~sit has bee~ indi- 1 cated by ~w.2 the Jir~ctor was not satisfied with the work which wtts beine; done ·by the accused. He tolJ him to stvp untl be t;iven ..mother work by i-w.2. Then on the next duy,_ that is on 22no oe~temb~r 1 1988 the accused went at the home of the l1ire.J 0r. UnfvrtunD.tely the director was not present, he told the house buys to bive him the said stolen items and from then t: l j \JI!' 'I, j • 2 - he Jisa~~e~red. 0n !2~- ~ctubur, 1988 ~W.l a police officer went to arrest th~ ac~usecl after Leine instructed by his suv~rior to clo so. He testifiod before this court thut he founJ th~ accused person had conc~aled himself underneath the bed. The witness, however, did not finct the said stolen instrum0nts in the house of the. accused." The boys at the ~irector•s hcuse who alle~edly handed the implements to t~e a.p}jellunt_were not callecl to testif,- un that fact. ;rn his judgment on this point the learned trial ma~istrute 0bserves:- 11 ' • • • Unfortuncltely tho proset-.ution side has not heen able to call the h~useboy who handed the instrum~nts to the accuseJ on the uuy when it is allec0u th~t he stole them, the court was told thut the h0use boy could not be ~rocurred sine~ he huu ldft the place lont; u~o.h ~ The lea.rneu ma.eistrate ncknvwledged that the failure to call the house boy -enGonJereJ uoubts in th-=: prosucut ion case. Howevi.:r, hi'./ w.ant on to inuicc.te tha\ the J.oubt wu.s cJ:earad purtly by the ai+ellant•s 11 behovivur 11 o.t the time of hiis nrrest, of hiuine hims~lf unJ~r a bed. The leurneu m~cistr~te a.lso snid that in' .:l writt~n st .... tem1::nt tu the police tht: u~,,;,)lla.nt h.:.iu sui'3. he hcd t:5one to Morofcx:c soon aft~r the ulleceu theft tc look for u medicin~ mon. !n court hu c~ve a Jiffert:int story anJ sc.iJ h1:: huo been "lookin:.;; for a sulution of his dismissal with JU'vh,Tt~ l_Jeu1Jle. 11 '.I:he le~rned MLlgistra.te concluueJ thut this coni.1uct on the purt of the u~vellunt pointed to his $uilt. The leurnetl m~cistrate ulso relied on nn alle~eu confession to the theft by the np~ellant to the police in reaching the conclusiun that he wo.s guilty uf the offence char._:ed. / . / un the all.e 6 ed 'behaviour or conc.luct of the ai:pellant after the theft I think these are too remotely conn~cted with allegea theft to consitttute credible eviclence upon which a court of luw could convict a :i:Jerson of an offence• i-1.s re~ards the alle 0 ed confession, by not acceptin~ the allecations of theft made ai}linst him in court the appellant must be t.Aken to have either denied or retracted the confession. bo it (the confession) was of little, if any, on evidential value. In my view, the case for the prosecution stcoJ or fellLthe evid.ence of the hoase boy whu !l.llecedly hunJ.ecl th~ im1,th:ments to the appellantw In the absence of that evidence, ther~ w~s no credible evidence up0n which the churi.,;e · lJr'·fB:-:-red in this case ccul,.:. have stoo1..1. I holtl that the O.ifpellant w.;;.s c cnvictecl on v.,ry weak evi, enc,:1 1 i,:;viJcnce which <lh1 not prove the chc1ree aeainst him beyun ..~ o.11 rl;io.sonaLle l..l.1..,ubt. i.ccorclinsly 1 I o.llow his appeal tc.. this court, qUQ.sh his -convictivn un..i set uside the st:ntance imposodu 0n him. - 3 - I direct th~t he be r~lbused frum J4il immeuiutely unless he is helcl thf;;lre for Sv"'•' oth1::r lawful cuuse. 1///t/{~ L. ,,. a. KY ..Ruv· JULGE For the a1J 1,1=lla.nt - absent. For the rl0puulic - Miss Barahomoka Judgment delivered. ., ... ·.-