19830302 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA tm T?

APPELLATE JURISDICTION CRIMINAL APPEAL NO.77 OF 1980 (Original Criminal Case No.87 of 1980 of the District Court of Sumbawanga District at Surnbawanga Before: S. J. Lawena, Resident Magistrate)

JERASI (Original Accused) v e r s u s THE REPtJBLIC: RESP0NDNT (Original Prosecutor)

J U D G N B N T MROSO, J., The appellant was the sebnJ accueed among three accused persons who were charged in the District Court of SUmbawanga with storebreaking and stea1in dontrary to section 296(1) of the Penal Code The apoellant was convicted while the Other two were acquitted. The appellant was a night watchman of a mission store WhiCh contained Cecond-hand clothing meant for charity. On the n±ghb of 16/3/980 he was on duty guarding the store. On the following morning at about 8 a.m, after he had gone off—duty the tore was found broken into and an assortment of clothes found stolen 1 He was arrested on suspicion and when his house was P searched nothing incriminating was found. The first and third aocused parsons in the trial court were arrested becaus they were found with suspected clothes. They told the investigating police that those clothes were bought to them by the appellant with a request that they sell them for him at a fee. During trial the clo;hes which had been seized from the first and third accused persons wareproduced as exhibits but there was no positive idontificatidn of . *12 2 - thomas the ones which had been stolen from the, mission store. That was perhaps not very surprising considering that none of the mission personnel may have had detaiJd lmowledgeof ãlbthes most probably imported in bulk. Upto the stage of the close of the prosecution case the only

àvidonce tending to implicate the appellant .wa that he had been a watchman at the mission on the night prior to the discovery of the theft and a police witnes who said he first accused had claimed to have received from the appellant the suspected clothes found in his, possession. It was only during the defence stage that the third accused and his witness gave evidence to ±he:effect that the appellant initially had the suspec'ed clothes. A qubstion has bc-on raised whether the prosecution had established a prima facie case against the appellan at the close of the prosecution case, Learned State Attorney for the respondent Republic has conceded that a prima facie case had not been established. I respectifüfl agree with counsel. Stxong suspicion had been cast on the appellant but that Was not a prima facie c.se The trial court should therefore have acted under seation 205 of 'the Criminal Procedure Code by dismissing the charge against him and acquitting him. Unfortunately, however, the trial court used the self—exculpating defence of the third accused and his wioss who gave supporting evidence to find the appellant guilty of the offence eliargod 0 On the strenth of that sarie evid.ende tho first and third accued persons were acquitted. The other factor which influenced the trial court to find the appellant guilty waE the fact that he declined to give any defence when called upon

to do so. Apart from the fact that an accusocl parson is entitled, under the prevailing law to elect not ';o say anything in his own defence which riht the appolJant exercised, he had a second good reason. As already monioned at the close of the prosecution case no prima faio case had been made out 0 /3 3 against him and therefore no sufficient case had been made out which woLildLoled the 'il magistrate to call him upon to enter his defiace. I allow this appeal by quashing the ñvicio and set aside the sentence of five yeas imprisonment0 If the appellant is still in pison he should be released forthwith unless he is held for some other lawful cause 0 Job 1VROSO Mbey JUDGE 2/3183 Mr. Kapinga, State AtEoinè. JAM/ATM' lima0