lutengano moses vs republic 2001 tzhc 42 19 november 2001

IN THE HIGH COJ‘ <T OF 'TANZANIA AT MBEYA ORIGINAL JURISDICTION (Mbeya Registry) CRIMINAL APPEAL NO, 75 O F 2001 (Originating from Mbeya District Court Cr. C. No. 7 of 1995) LUTr.NG.ANO MOSES ........................... APPEELANT Versus TKS REPUBLIC .....................RESPONDENT JUDGEMENT M ACKANJA, J . DOROTHY’MBENA (V/0'1) was the administrative officer of a foreign organization known ,as' IFAD.since May 199^- She, on 1^th March, 1995» discovered pilferage in ve&terinary drugs in a store that was managed by her firm through the Livestock Department here in M b e y a , Several people were suspected and quite a fev; were arrested, some o f whom were discharged only to appear later as star prosecution witnesses* The drugs that were found to have been stolen were valued at Shs«169,300,00, The evidence that links the appellant to the crime is that of Musa Mudonya (PW.^t). He testified that at 7»^+0 a . m 0 on 3rd March, 1995* while he was on duty as a watchman the second approached him with a suggestion that he and others planned to steal from the place P.V .*+ was guarding* The witness alleged that the second accused approached him a second time on 5th March, 1995* reported the planned theft to the Regional Crimes Officer even though the second accused never carried out his plan to friction to the knowledge of Pv/.^f, On 19th March, 1995? P^'.^f picked the second accused from a Police, identification parade as the man who ^ s d approached him with plans to commit a theft. The other piece of evidence the trial court relied on was that of D/Sgt„ Salum (PW.3) who testified tnat they found the second accused hiding under his bed when they were led there by the first accused,. This, and the testimony of PVv„^, was the evidence upon which the conviction was founded. The appellant was aggrieved, so he appealed, Mr. Materu, learned counsel for the appellant, has raised three grounds which he argued generally, contending that there was no evidence at all which could support a s^und conviction. Mr. Mwenda, learned State Attorney, joined issue with Mr. Materu. Let me say right away that fear of arrest alone, whether or not the appellant was criminally liable, could easily induce a person to seek . refuge. It cannot be considered to be evidence of guilt. Now, P'.^.^ alleges to have seen the second accused, the appellant at 7.o^+0 a.m. on . . . . */2 3rd March, 1995. He claimed to have reported the matter to the office j i of the Regional Crimes Offi c e r . Government Offices open at 7*30 a.rru for business. W h y did not he find it necessary to report the matter to his employer? * j As Mr. Mwenda has pointed out, evidence such as that of F ’ .^f required corroboration. No such corroboration was given. It follows %that the conviction is unsound; it cannot be allowed to stand* ..• , I The appeal is allowed* Conviction is quashed, the.sentence o f five years imprisonment is set aside# It is directedtthat the appellant be 4* ”'*W discharged from prison forthwith unless his continued detention is justifiable-on^ome other legsl execuse* .^•.Delivered. * *; * / w (Sgd.) J. M. MACKANJA JTJX5E 19. 11.2001 ■r ^ Mr. Materu, Adv. For Appellant. Mr. Boniface, SA: For D*P.P. CERTIFIED true copy of the Original Judgement. Dl§ T£tCT REGISTRAR