19890403 TZHC Dar es Salaam

IN THE HIGH COUkT OF. Ti1.NZ1-.Nll-1. AT l.Ji<l< ES ~ ..... L.1-1.i-1.M AP¥ELLhTL JURI~DICTION - . HIGH COUl-<T CRININAL b.PPEI-..L NO .. 168 OF 1988 (Origina1 Criminal Case ~o.1583 OJ' 1987 of the District Court o~ Ilala District a:t· Kivukoni. Before P.Mwamagocla,Esqo 1_Senior Uistrict ·Magist_rate) MJ.RTALI lfAJI. o o o 0°0 o o o.• o o o o o oAPPELLl\.NT versus THE UNIT~D REPUBLICooooooooooRESPONLENT JU I;GNlfil'!!_ MSUMI,J_.. Immediately after hearing this appeal, I made an order quashing the conviction and setting asi<le the sentence. i1.ppellunt was released forthwith anu promised to furnish reasons for the order later on. This judgment contains reasons for the said order. . . . Appellant was among the four ~ccused persons jointly charged with -· Bui•gl.o.l'y --eorrt~ to sections 296 ( 1) mid 265 of the Penal Code. On ~onviction 1 which was not supported by the :kepublic, appellant and one of his colleagues were each sentenced to jdil for a term of four years. The evidence on record shows that on the material day the premises of the comp·lain.::i.nt were broken into and some pro3?erty were stolen from therein. bome'of the stolen items were found in the house in which appellc.nt un·cl other people live. h tot~l of three witnesses were culled by the _prosecution. Two of them identified the exhibits tendered in court as among the items stolen from their premises on the material day.· tincl the remaining witness who is a police officer testifie<l to the court the information he got in the course of his investigation of the case. li.s far as muterial, the witness told the court that· he was informed by one of the accused persons that the said accused person was told by one Yusuph that the alleged st~len property fo.ll;Ild in the house in which appellant live and othe_r people were brought there by the appellant. This is the only material evidence on which the conviction of the appeliant stands. It is quite clear that the evidence of the said investignting. o~ficer ns it appears on recortl is nothing but hearsny. There is no explanation why prosecution ~id not oo.11 us a witness the said Y~llph who allegedly told one of the accused pe.rsons that the stolen items in question were delivered by the appellant~ The rule ugainst ntlmissibility of h~orsay. evidence is both stututory !lncl cuse lo.w. ••••/2.oo• 2 . E,c.eept wher.e. it.a adf!lisa,ib.i).i.t,- _!.al.ls under one of the exceptions · to thi.s rul.e, no conviction can be sustained -On. .hailr~y e,vitlenee. The leuJ"ned Senio.J" District Magistrate- ought to huve 'been c ~ t )1-it.h. -thii ~l~~y rule of evidence_. ~ In conclusion the order quashing the convietion·nnd setting aside ·the se_n_te_nce is based on the .above. explained legc..l defects in ..the. ~ u t . ~! the ~rial .c~rt. ... (____,· ~lv,_l¼._-.-· . H. · -A'. MmJIMI JUuGE .......