19771124 TZHC Dodoma3

IN THE HIGH CO!)R,.T OF.'TANZANIA~. . '. ·: . ~ ·::.·.·,.: .• AT DODOMA /\PPELLATE·: jURISBICTION . . ' . 6.iUMINAL. ,\PPEAL ffoo. '';1.88 OF ,)-977 .. O)UGIN11L CRIMINAL. ·c:1\SE · No. · 294 OF ·1977 . OF THE . ' DISTRICT. . . cou~·T . . ,' • OF. IRING/-\ :.: .. . ! . t: .. : . rfrSTRICT ~ .' . .~ AT IRINGA .. 0 BEFORE-: 0,. 0 0 · o DI.STRICT t1AGISTRATJ;: .-, .:.1 . 1 ;,..· NICODEM JAMES MH$WA ·-~-- ~. 0 0 ,' \C .·o,. _o o .APP-ELLANTS THE REPUBLIC 0 0 0, -0 0 . 0•'0"0 . -:~ . . 0 o.o .! ' CHARGE: Shop-breaking and stealing c/ss i96: ..~~d·: 2·6·s·: of the. 'Penal Code. ~ J U D G M E-·N T .. . ~ .r. JONATHAN, J·~ The appellant was convicted of shop-breaking and stealing c/ss 296 and 265 of the Penal Codeo Against.:tqe ·conviction he has appealed to this Courto The prosecution evidence was generally unsatisfactoryo Both Pwo1, the compluinant and the appellant are shop 0 1.-mJ'l.:ts in I=rin'].::i Township and in both the shops cigarettes are an important itemo According to Pw. 1, he was away at Mombasa when the alleged incident ~ccurred, and h~ was only told of it by his wife on his returno She was however not called to say what had really transpired, but the allegation was that the shop of the complainant had been broken into and cigarettes worth approximately shso 8,600/- stolen together with two radio cassetteso Reportedly, that occurred during the nighto On the next day the police acting on a tip-off visited the appellant's shop and there found one big consignment of cigarettes o They were altogether worth between shso 6,000/~ and 7 1 000/-o The appellant's expl_anation both then and before the court were that he had that morning bought the cigarettes from two people who claimed to be relatives or some shop-keepers at the village of Mtitu where they had closed their businesses. Those people, he said, had handed him various receipts against which the cigarettes had been sold by the Tanzania Cigarette Company and these he duly producedo He went on to say that he had paid them only the sum of shs. 3,600/- on an agreement that they were to collect the balance of shs. 3 1 000/- later. As his witness he called Dw.2 1 a taxi driver who testified that he had that ruorning been hired by two men having a luggage and that he had taken them outside the shop of the appellant. The learned district magistrate in his judgment found that the appellant had received the cigaretteso That being so he could not then have •-~v;i.cted him of shopbreaking but of receiving if, as he found, the appellant had knowledge they had been stoleno The cour-t.- inferred such knowledge from thi~ facts that the appellant had not bought the cigarettes in the presence of a witness and that the receijf- he produced had been issued by the suppliers on divers dates previous:y to the relevant day. It may be desirable in a transaction as that to call in a witnes$ but that would C1''i•·md on th-~ ·C'JGOcl jm:r;: .. n-c. •. ~f JMe buyer and it is not otherwise obligatory to have it witnessed. As regards the dates on those receipts the appellant's case was Tanzania Cigarette Company had sold them to the original r~tailers at vaEiou~ time previously and it was a misd-kection on the part of the court to expect that the receipts would have borne the relevant date. 2 I think, therefore, that the explanation of the appellant that he had not suspected the cigarettes might have been stolen was too readily rejected, especially considering he had made no attempt to hide the cigarettes awayo As also pointed out by the ·1eatned advocate for the appellant, the cigarettes were not s~fficiently identified by the complainant as being among those st'olen from his shop" H~ where do the many boxes appea~ to have had the name of the complainant or any mark to_ identify ·them as being his propertyo Indeed, I get the impression that at ·some st&ge 'in/his evidence he disowned some handwriting· on one ,of .those boxes. To the forC:going may be added the fact that the exhibit boxes appear to.cbmprise more_brands of cigarettes than thpse-~tolen from the complainant's sho~, suggesting their immediate source .might have been elsewh_ere. The conviction, as conceded by the Republic, was arrived at on insufficient evidence ancl, accordingly, it is_ quashed and the sentenc0 set aside. The. appeliant'; should be -released if there, ,i.s no other· lawful reason 1;:d detain him. .•.. )=.·· · Judgment delivered this 24th day of November, 1977. , (r if(_ ta (~ . "· - ...... ~ P.M.-- JONATHAN JUDGE. - '':, i ',. . j