19830716 TZHC Mbeya

I ll TJh i::i 0TJPm OF T.PZLPIA AT - LJ1hLT 3FITDilOJ OhL AL i.0 (o:cT::i c:::x:i c A02C2 o io o i: DIS 1F 7 C7 - CO1I?T o s: :t. DI81O2 P o E J. L:rTA .?ThT Jd JuliA M0HL1D D .IATO ITiR . , . . e • . . verses iE FdiPUBLIC, • • • , • ., • • .• , • . R. lP0IT:TT J UDCd PITT Charge: Stealing by a person éaplcy.u?. in public aeraice cls 270 and 265 of the Po1 Co(11'e Oap.16 of the, La7,, s4, Katiti, J. Juna Mohaned, ani Ranadheni c a ado, riPe heroin were lot and 2nd. appellants, were •)y SU]ibSnaIiIC District Court, round guilty as charged, convicted and sentenced to 2ivo years mpa:scneent-eaa fQr stealing goversnent injector pimp on 4/8/1979 valued at Shs13,000/ Prison being no Tourist :a:oort, the nppl]ants Tin - c appealed against conviction. When the hc-arjin this nal corienacad in wore inforaed, that the hitherto 2nd eppcllnnthad u ortea -nAhy died, and ittilo we winh the deceased peaceful rct, lot, the apacal batc, and it was so ox1ersd. And referrcnce to the s:pallrint shall honco aec.n the lot appeilant. - In respect oo toe let appellant, fee leanied advocate I.Tp.. Mviakilasa appeag on his, behalf, had feio. prounde tonrmene1y rho ob1owftg: (i) )aat the 1eraoi :iiagistrate eried iia ' convicting the appellant N Is charged, in f-ic e.bsniceob ouPIi-cieia-t evidence of existence of ownership of the alleged stolen (2) Tat the learned magistrate erred in eonvicg the

appellant despite unatisI'actory evidence of 712, whether what he saw was an injector pump. i did ±urticr arDllfy cocae, ii his 'ubrisions contending, that for reison thcioof t a 1 aesi be lloued. Mr. Teenba the Senior 1 -naod St so ttora.y, asperia or tl, a Republic, contended on the other nrd, t-t t a vido ace did. unquestivaably, and widoubtedly, prove the c - se 1ieioncl rcoochle doubt, i pray rias fe t tee appeal be dismissed. .1 shall £rsm hone0 pay' careful orimon, to th. evidence iiaor 'A tø• see whore the flash—ligat o f:'usice, safely lends U :to... Ou thOffYideoe of PV71 Edward liore no vics i'i_charj a of ccnics at Sunbawaiga Corxworks, ti cit he I d rcccrvod an Isimeu 1-jector rump from 1,1 -prr'a Conworks, for roconditioning,doe hot a-tfrac't- con±roveroy- not-even om the.dofence quartes er that, PVI4' Gabriel Kdprdo kept the snm6 iii the' store is dèfy1itgchaIlbngc Tint bring. tho'±nsariat,1e ceee 7 'ihad ni did thea ti-ial -I in -2- court, rsch i:ac tar pUa: so roceivod and. so kept. And onni-prosent in this record i.i :ai:: tha ovi - onco, that on the 6/8/1979 the sniO in:;octor auo ::--: aiosj.n, or stolen from ia:o store. It is clear, :nLth t'.i oe evidence thab, tha injector puap of kpanda 8onao±s, that, hod bon : :.t there for repair was found iajssjn. It is perhars Ui cner:.. eal, to start on exerciseof rofroshing evoryboCys nenory in tho direction of the

obvious, that Corocorks never repairs private vckiale. Pac a.. - rski - •:? the injector auiip is obvious therefore, I -think e'aen to a ankod oyo. en .:;ele sane, ia f istion, upon which I new erfoark to deal with. that t appellant was one of -the nechanico in Sunbawanga * Cororks, witiessod :a.oither contoardca, hOT chal1eng, and conseuent1y as did the trial court, I too be1ivo this was so. P\71and P\72 di testify that on the 4/5/1979, the a: client was on duty. this testinony, though it attracted no controversy fron the dofanc.e quartors at the trig, it was definitoly greetod with .n ciecthen.to keep quist, and coll.no witnesses by 'the dofe::ce It is neither ny wish 5 n:r the policy of the liw, to condors-i tic epacilont for so ei - cbie. All tho sane, it does seen, that, the appellant hod in the course of i:veotigatians told a police officer P73 9 -that, h, - enaeli:nt, had net hen on duty on the day and date in ouestion. Tao aellaut was staing on aib± P73 hod in the above direction,. thc following tc, tell, f: a court- UP0 fi:-at accused st:.tod that onthat date, P-i was sick and was in i- o -tl. He - ove n.-, C. dick shoot nd a hospitd card. :iov:ever on /33/1979 9 o wont to hosaital tcraoon. I tender the ick-sheet an 7ii4 u A 1i end the card as I h::ve cxa:nd a:ilit eit nacl. '3 who so a issibility was not eke-il a:od and .1 en satisfied, that tany nc-re.dcalt with in

fee -- afternoon of 4/E/1979. However the fet that, -the appoi1ant i-lever personally raisud nd pursued .aiibi iii is do c:.ice ftocs nat noon, we should hold it against kin, for when the accused ptc,-cs an alibi, or where such alibi otherwise apaears on record as an. answer as it appears to hare boon in this case the accused <ccs not thereby assune the burden of prng it. the cao of R vs JOyySOLT 46 CR AP.. P.R. 55 9 : is of assis tone? in the situation ientant. -. - - the case reads:- thOUft an alibi, is cc:aoniy ea11c4 a dofece, it is to he distinguished fron a statutory defence such as insanity, or, diin±cked responsibility - end is OnalOgous to a defence suck as seif-du once, or provocation. 1: prisoner w.io uuts ±'oxword an ailbi, as an ans-rer to a cha:ge, does-not assuno any burden of proving that answer and it is a. nisdirection to refer to any burden as resting on the prisoner in 7 suci a case -3-' It is oiaourh and :s -' r.au1t in f:, accue d 's aeuittal a s it was held in iL01TP IIST V P:PUDLI0 / 1963 / : 206 1 if the evidence about aibi raicca r asonable doubt as to th; built of the accusod In this case the medical docaomnts Show far; an' al]m.nt ace attended in the after- noon of hae:c "in1 Jet.. fiat :m be. But P1 and PW2 know the appellont. very well, nyif cccox1in to them, the apecilant w on duty in the morning. The trial mistrate found flUl and P2 crodThlc

witnossos o cad I do not think, lie erred in Co fimdinr' arid I so fd. Ti cupo11at alas on duty on - this day, ailco he endiputab1r had ace.es to the store., then obviously ea:.e11eat ' a. corrsuonfinp otportoisity of access to the injector PuP-, tilnU T'O faj:.rein kiat. Next in sidnificance, is the evidence of r72 Junanne a driver, and resident of Suaebm;-anpn who at the time of tho incident, wa at Conworks to coiloctaVv No. ST 78&lt-. Hc ws thnicd fee vehicle, and as to what transpired, here is P72 himself seakin; hereunder:- IP.vinp been handed the vehicle s I left fec yard wife the two accuced bforo this coürt Tecy asked ru take than to their hoa;e 0 I did - take fame ta their hono'where I dry3ed t the' home of the 2n1 ccusid, when they dropped they , took one injocto' rauira' which. they wrapped in a cellophane paper Sináa the pbpor is tronsparent,-' C I one it quiteolearly. Po drive i know most parts, of fec vehicle, Th idetor purr), was similar to the 01Cc w in Tee' abov. loudly what it has; to say, and the cross 3XCCW)t, SaYS exoran±1on ti-t PP2 udthrnc , - a not ) r to ho e orrodeO. the credibility of PN20 I bc1ire thaeref.ro as iJ the trial couit, feat V72 dii -;ive.the appellant and ano fame a lift from they aliphtod at one place, with on an injector puma a-u the Isuzu ty'e, Nr wnkilaoa did out,Trlii that, the evidence of PW2, whether v;hei lie s -w was an injector

pump ws auase±isthctory. P12 1 s evidence, is in the above excerpt clear, that he sai ania.ecto pump in a ceilpiacte. )aper 12 confidently said he was a dmver and knew most of the nntove ic12 r artc, ath went to fe extent of a - inp it.wos on Isui,injectcr rauL:p •:k tic c3aect, faa oaadlart did cat venture, crosS-eXa]eiia.tlOfl )are from periphanal L1aftt3rS - Nor ems Pd2s expertise at ideatithi the type of i:acthr un su 1ajeetod to examination. I am left satisfied, feat, foe ;jppeJ.1nt med anoior'bad•'uninjected pinp of the Isuzu type, immediately they h' P. left coawoi'kn, vhen a si:raiidr one was founc1 miasilif in foe c'onaaa1s mmcm cc 6/8/1-979, . .. TiC a 1 poth in )ORSOS d o Iu:u Inectoa 1iu1 3 but kept qotiet abc-ut di vfren it cc c to 1 ais do'hancc. The Goverment's Izuzu Injector uup wan found roammt:p tea days, offer the appellant ws socn vim the o e or tie a mm o1ael1ac1t uuisucceesfully told e lie, I c m-s o 6 me duty , a' - cn he a, thct T f--cu -th f the atppdfli, 4 - was seen with the sr*.1 proporty iimodietelv he was given a lift from Couworks, cad nJ.y a similar property to bo.foun.. missing from the same place, doca robe an irresistiblo inference, thct f.a same property the appellant lxd mast have bcn takva frau conworks. Since this was without leave of the amer, or a.uthorised cirants, this amounted theft, and by a aereon employed in ..ublic seivice as the appellant was employed in puDlie sorvice co eo:rictionwns ievitblo, and as the saitacco ia only a st: - thtory :aJJ'uoaLua for pronerty valued above five thausead shillings, interferoce with The some 9 is unwarranted. ao appeal is totallydismissed. Delivered ibis 16th day oP July , 19630 L& b