19871124 TZHC Dar es Salaam

IN 11':IE. lilG-H. .OQl.JRT OF '!JJJ'..;.!Jiill. .J AT D,!.R ES S_bL....i.:)! ~ELLI.TE JURISDICTION - ~. HIGH COURT CRThIIN.l.L .i0?PE.l.L. liO. 47/81 (ORIGINJ..L CRIMINAL CA.IS 110. 191 OF 1986 OF TI{E DISTRICT COURT OF M.OROGORO DISTRICT ,.. · . . AT !.'IOROGORO BE:11.)RE ;~. R. M:11,NENTO ESQ • RESIDENT M;.GISTli!TE - Ni~SORO MJ.GONGO; ~.~~.~;I.~;~~~; I;~.~ ~J~J?PELLAi:JT (Original J.ccused) versus TIG UlHTED BEl'UBLIC..,~ • ~ •••••••• ~ • : ~ .RESl'ONDE:NT ( Original Pro secuto rJ JUDGMENT The appellant, Nassoro Magongo, wr~ co~victed ef burglary and s·beal;\.ng• He was sentenQed to three years imprisonment in the fir.en; count and ·i:;wel ve months imprisonment in the second oount ·, to be serv(. oo:ncurrently. He now appeals~ The evidence against the appellant was v,holly eircumstanti.al·~ In her evidence, the complainant 1 PW.• l Mariam 1..bdalla.h 9 said that the appr'"llant used to oce upy a room in Mar:l.em 1 s house. Then l:'.fter about one year the appellant left and went to 1ive elsewhere·. One day at about '5 pm, the appellant went to the house and asked Mariam to go to her daughter's house as she was allegedly required there. L1ariam refused to go·, The appellant went away, 11.t about 11 pri·., the appellant a.gain went to Mariam's house and asked Mariam to go to the house of one Shaban·. ii.gain Mariam refusecf1 The appellant dE:cic:cd to ·, go aw2.y, Later, during the night, Maria.'D. woke up and found that the door of her house was open and a ·radi~ was missing in the ho J.se. 1 She sut~per::ted the appelJ.ant who was subsequently arrested and charc~ecl. The stolen radio was not recovered. The appellant denied tliv charge 2.i.id he has repeated that denial in his petition of appeei·.; .1.~s I observed earlier, the whole prosecution evidence is based on the fact that the appellant had visited the oomplainant' s ho:1se hours before the theft was discovere~ that night. The evidence is therGfore wholly circumstantial', Do the facts lead to the ;i.rresistible inferancc of guilt? It is in evidence that when the appellant '.?ent to the complaint's house at about 11 pm. , he did not enter the house. !-le spol:e from outside the house and when the cemplainant opened the door 1 • the appellant went away. So, the complainant closed the door and went to sleep, Can it be said that tho theft w:iich was cormnitted lc.ter in ·.- ...·...·./2~ 2 . . ~~~;"' 1.,\1.c ~-~··::.•Q":_l()).:rt·r Is i·c :~,:ii:; 11os~:ible for someone else to hc:ve gone to the house vl1il,") t:10 oomplainant slept and broke into the house? I think~ 2.nyone ot:i'?.r tb2,n the appellant could have committed t:1e offence. I say so beca 1..::.se the appellant went a-way after the complainant refused to lf;ave h01~ houGe. The complainant said specifically tbat when she opened the d'Jo::. - tl:e appel1ant went awe:;/~ He did not enter the house. It is quite possible, therefore 9 that after the appellant went away and t:he complainant locked herself in the room, someone else went there 1:,roke into her house and· stole the radio. Before t.J:-1e c.ourt convicts on v,hol;:,r circumstant;i.al evidence, i·: must be satisfied that the inculpatory facts are in-compatibls Hit .. the innoc•3r,ce of the ace-used and in capable of explanation 1J.pon p.;.~·,- ot!1er hypothesis than that of a,e.cuse.d. 1 s gu:i.lt._s:e-e Ri V. Kinlceri:~s - ,. l(oske 19(9 in this case cannot be said to be incompatible vii th t:1::c innocence of t}1e appellant. It is not knovm wheri exactly the, t:so.· -~ comnitted. It was at night and it may have been many hours after the a;]pe~l a:n.t had gone away. The appellant is not the only_ pe1~sr:,L who could ha.vc gone to the house. Anyone else could have go110 t:K :.:· .: long after the appellant had left. The appellant was arusted a.nd subsequently convicted on suspecic..:. only• He was suspected because of his visit to the complainant's hy1 when he stood outside the house - and then went away. So it v12.s th6 1 the appellant i,1ay have :returned to the house later_ that night and he broke into the house and stole the radio. The complainant herself said specifically that she reported to the chairman that the appella:n.: "was a suspect. 11 Suspecion, ho¥1ever storng, is not a basis for a conviction. In this case, the re was no conclusive evidence a.gc-\inst the appellant and the trial co 1J.rt convicted him on mere s11spcc:i.on." I entirely agree with the lea.rnud State Attorney who declined to suppo1·t the conviction. 'I'he prosecution failed to prove the charge a.Gs.L1st the appellant and the conviction cannot sta;:.rl. The appeal is allowed. The conviction is quashed 8µ~ the sent enc~ is set ~ide. Unless the appellant is lawfully held in sorae other matte..t·s, he_ should be released from custody forthwi"Gh.' l.,~-- w. J , l\Ii~INA JUDGE MOROG-ORO 24th November, 1987 tppellant - absent, I.ialabai State A:t.toTney 9 for the Republic.