19750125 TZHC Mwanza

vv-H/: )g q,u4-1 fl'T THE HIGH COURT OP TA1ZANIA

AT MWANZA HIGH COURT CRflVIINAL APPEAL NO. 45 OP 1974 (Oxjnai. Criminal Case No0 383 of 1974 of theDistrict Court of iIwana District. at Lwanza: Beforo.W0A.L. ivarambo,Ecq, Resident Magistrate) JIJMA. H:AMISI ..,....., .... ...........,.......................6...APPIIrIANT (ial Accused) -versus:: TBE RERJBLIC . . . . . • a • • •. . . . . . . • . ... •.•.. ..... • ... . . ... •• • . . ....RESPaMDT (original secutor) CHARGE: —1st_count: Burv1ary c/s 294 (i) of the PenalTCode t Ste- .Iing c/s 265 of the PeiaJ. Codo

JUDGT MAG.ANGA AG.J.: o ooinplainent 1 house wasburg1ed on thenight of 22nd October 1973 and a radio waselolen from therein At about 3 amo a party of policemen including detective cons -table Philemon (P.1 11.2) raided the room in which the appellent was ° arrested and the stolen radio Vas recovered from therein, It was established that the room from which the radio was recovered was rented by the appellantt s co—accused in the lower court (who has not appealed and whom I shall refer to in t1± judguent as tho let accuod) and tjat the cppellont was a guest there; Tho appellant' s defence was that he had come to Ilwenza for treatment d the 1st accused who was an old friend •e-• him to say with hi.m at his houso The first aqcused and thothei' person then left him sleeping in the house and they returned aroend 3 ani. with a radio' As he was going out to release himself he was ccnirted by policemen who arrested him as well as his host and the other person. This statement he made in court was cnsistent with the statemjnt he made tothe police on the moing of his arrest Ini.his judnent the learned trial magistrate accepted the appeflant's veron and proceeded to look for corroboration of that statement to justify the conviction of the 4pellthit' a bo—accused For some reasons when he oame to consider the evidence against the appellant he decided to disbelieve the sno evid once which he

had earlier on believed Apart from the fact that the stolen radio was recovered from the room in which the appellant slept as a guest there was no other 6vidence to connect him with the two offences with which he was convicted. His story WAS credible and the consistency of his statement should have beentaken in his favour and he should have been given the benefit of the doubt. Like the learned State Attorney, who did not support the conviction, I feel that the charges against the appellant wore not proved beyond reasiablo doubt. I wo.uld therefore allow this aPpoali quash the oonviction and set aside the sentenc. He should be released for±ith tmless he is otheiwise lawfully held' Judnent delivered on 25th day of January, 1975t 25th Jcnuary, 1975 - R. B. MA GA. Batambala. for the ReMblic.. ACTING- JUDGE,. - t .--, --.- .