19910214 TZHC Dar es Salaam

AT DAR ES SALAAM __A.J?P.8LLA'l i JURISJI.ICTION 1 ·,HIGH COURT CRL.lINAL A.PP.EAL NQ, ·143/90 ORIGINAL CRHIINAL CASE NO/ ·1.198 OF 19~7 J 61 · THE :DISTRICT COURT OF ILALA DISTRICT ·AT KISUTU ! KARUivlli RAkADHANI i1IAGANGA., •• /·; ~ _. i ~-APPELLANT VE:RSUS I. THL UNI TB] REPUBLIC ............. ,.;, ;RES.?rrI.iEDEHT. · JUDGivi.ENT. -~he a.ppellant, ·KARUME R.AMADHANI MAGANGA, was jointly- e!:l.argee.r. with another accused of the Ilala :nistrict Court at Kisutu on f•ive c,,•nts. ·,. He was char,ged with r-ne count of conspirary to -,cj~frS:-ud. cont~~ry to· section 306 of the Penal Code,.two counts-of fergery centroi-y to sectio?J.s 333, 335 (d) (i) and. 337 .£. the Penal Code an~ two cou~t~ of obtaining moriey by false pretences centr•ri 'to section 302 of the Penal Code. The tri~l court acquitted the appellant ~n the conspirary charge b~t cdhvicted him of the rema~ning fo~r counts anL sentenced him to a concurrent .9ente~ce of seven years imprisonili~nt. It is not insignificant to mention at this stage ... that though the app0llent was not arr.aigned with the two counts of uttering false docume~ts contrary to section 342 of the Pen~l Code, the trial uourt donvicted and sente~cei him of these two charges as well. The appallant has n~w ,; appealled to this court against the decision o-f the trial :$.o-a.rt. . '·' The o1.ppellant in his rather ·re.rbdse memorandum of appeal has raised twelve frounds of a~peal. These ~rounds can convjnie£tl1 be summarised as follows:- 1. The evidence by the prosecution ·iid not show that the '. appellant was of any material period•in poisessions of th~ < cheques that were involTed in the offences in question. 2. The prosecution did not ha-re evidence to shoVf that the appellant had forged the cheques in question. 3~ There was not on as to of evidence to show that the app~llant hal uttered the said cheques. 4• The trial magistrate had confused the appellant with me KASHINDE whom he kept on menti•nxng in his judgment as being culpable of the offence. ... .. /2 ...... . · . pellant ·"":.:. . .,./,':; - , . mp·,.. oyed ' .as ·, . the. cashier· a:t the He[;ld Office- of Tanzania., : · Tea Authority, · It is alr-;o not iu dispute that c,n di Yers 000aseions 6n.ring 'the months of No•Tember and Decern1ler 1906 sums of money to. the tune of sh~o 315,117/75 were fraud~len~iy paid to LO~IDU E~T~R PRIS~S vide two c~eques whitih were payable at the National Bank of Co1J,merce, Samora Ayenue J:3ra~·ch. It would appear that the learned trial magistrate kased his conviction ~ga~nst the appellant nn mere opportunity to commit , the offences in questi0n. This court has times withoat number stated that mere opportunity to commit a crime can not be a basis for C'Jnviction. Suspici:)n alone however strong it mai: be., independent of any other evic1.ence can ne-irer ,be a basis either. Here; the mag:..stratd 1 ::: ,i·:dgment did not give any indi9ati:m that he was :-w1 a,i:e the.-'~ ~:-- ~nus of proYing the. gnilt :Jf the aocl:.sed is on the p:r..:,secution ~ or that. ::~e ga·rn any c,msideration to the prosecution evidence. In the inst~nt case there was not a,scintila of evidence to conne~t the appellant with any of the fJraeries: or utterances of the cheques th~t facilitated th~ thefts in question• This being the state of a~fairs it ±s inconceiveoble hJw the learned trial magistrate c.~,uld base or gr,;,und a c :mvic.tLm in. any 'Jf the charges that were levelled against tha appellant. As I have, I h'Jpe, amplJ 1emonstrated ab'Jva the deci~ion of the t:rial magistrate can not :,e allowed t'.) stand. li'Jr these reasoni., I al}.ow the a!')nP.<:il. quash thfl c,.;,nyictions, which, incidentally, ilfr. Mai:upa, counsel f ..n the Repul'lic, declined to support, and set aside the sentencei imnns~? ~h~teun. It is thus ordered that the he is otherw1se 3.f>pellant be rele8~ d f::;rthwith unless/Jawfully detained 0n ;:ither 0 matters. 14-2-91 Coram1 Mkwawa ag~J. Mr. Kuiki Stat8 Attorney The appellant present in pers0n ~ndar custody~ Court: The Jndgment is deli~ered this 14th day of'Febrnary, 1991 -:ai uar es Salaam i~ the pr~sence of Mr. Kuiki fJr .the Republic and th~ appellant in pars0n. 1 A ') n1