19850816 TZHC Mawanza

AT MivANZl~ - APfhLLii.T~ JURISDIGTIClii I liIG.ti C0UirY GRIN rnAL ii.PP .Jil;~L i~0.. 227 OF 1984 ( Oriiinal Criminal Co.se lTo .. 142 of 1~83 _of the District Cou1·t of Bunda District at Bunda - }:1.3fo1'c P. z. Kag·ali, J!.isq .. , Senior Dhitrict Magistro.te) 1.Il~Y.hJ\1Ie·•·o • • • • • • • • • • • • ;. • •"• • • • • • • •·•·• _.;;,:.• • • •· • •- o·o • •• • •.ill.JP&L.h.l~'J' ViillliUS 'l11l& UNITED Ri!;flUBLIC ••••• • ••• , • •• • ••••••••••• ~ :.·•.• ••••••••••••• •. HES.PClvD_;_:_;N•r JUDGJi;MENT. .. MJ3IU 1 J,s The appellant I Jele1;12,ni Kinyam i, was charged and convicted on two colln·i;s. On the firs·~ count Le was chartS°ed ivi th house breaJdag c/s 294(1) of the Penal Code and on the second count he was char 6 ed with stealiJ16 c/s 265 of the Penal Code! He was sentenced to four (4) ycc:rs imprisom.:mt on the first count n~1d. twelve mol'l.ths imprisonment on the second count., Th-a sentences were o:; d3N;c.l tc. run concurrently. He is a ..)poal in6 a 6 a inst both ccnviction and cantence • .i.ccordini:S to t11a p1'os0cu. tion evider.ce, P. W. 5 .tt'arahani Nyacheri, · locked his room and- ,,,Jnt to work. Later on he was informed that the roo:n had D8en OPl::lned a11d a n,dio cassette stolen. The incident was reported to the police. P • .W. 5 s tc.tod that he had suspected one Nyawam inza Kihiri a;.; the thief because .10 h2.d. spent the ni 6 ht at his place. He also suspected. ti1a appel1ant as he m-;t hirn near his place. Later on an info:rmc:,tion was received that the ap~ell2.nt was seen in Mwanza with a radio cassette four band.~ Three wi tness2; including P. w.4 Chae.ha Mwi ta testified before tho cour·c that they saw t,1e 2.::_,:,iei.lant with a four band radio cassette. P. w.4 saicl thc::t the appell,nt wc:~1teci. to sell the radio to him at Shs. 4,50C/= but Po Vi•4' could not ·b..1.y tho rndio because the appellant had no receipt ior the radio. This ~ns in January, 1983~ P. vl,4 said th:1t h.e noted the nwnl:ior of the caset-te a..:i boin 6 No.0071088. P .. w.5 produced a receipt in court wLich he said was thG receipt he was 15 iven when he purchased the stolen rndio and the number was 0071088. The appellant was not found wHh any radio casette when he was arrested. The appellant was convicted because P. w.4 said thc, t he noted .·-the number on the radio casette which the appellant hnd as 0071008 ,·ihich number is the same as th:; on0 on the receipt produced by the ccm~L1inant. The fact is that P. rv.4 saw tho radio when he wan-bed to purchase it but tr1e deal did not materialise. A question may tJ posed as to why n1.4 h:1d to note the number of the radio casette and still ramember it twelve months later. 1-/hat W[iB the special interest th.sit P. ;Jo.4- had ,·rith the number of this case-tte aii to keep it in his mind or mnk.e a not a of it and keep it for so long? The evidence of f.J.4 on this point ...·.-.. ~-. .-;i. . l 2 of numbers is susp.:Jct apd it may very well .be ·tha t he wa:;J col\Ohed and it . . .. was certainly unreliable~ i:hile it was esta.bl°ished . ( , thai. the· appellant was seeines with a similar j_"c?.dio casette in Jvlwanza as ttfe ·onG stclen from ' the ccmplainant '·s hou.se, -chere is no believable evidence thvt the radio which the appellant had waG the one stolen from the conipleinant 's house. It is unsafe to uphold the conviction.. the appeal is allowed. The convictions are ""1.uash'3d and the sentences are set aside. rrhe appellant must be set at liberty unless otherwise lawfully held.. Judcsem ent is rt:iad in Chambers in the presence of Mr" 'l1 endwa ~Hate i:.ttorney .• \\\../ N. M. MUSHI JUDGE /