19910628 TZHC Tabora

IN THE EIGTI COT.J"Rl' OF TANZANIA ' ' ......A!i' TABORA. · . " } APPELLATE JURISDICTION (Tabora Registry) (HC) CRilviINAL APPEAL N0.64 OF l-989 ORIGINAL CRDITNAL ~1a No.175 oF 1987 OF THF; D!STRICT COURT OF TABORA..DISTRICT AT TABON+~ Beforet C.B. MAKUNJA, Esq,,' ~IDENT MAG!STRATE NICODEMUS SHIJA. • •• ~ •• •• •, • ~ ~ •• •·• • •• • • • •• • • • • .APPELLANT ,1 · (Original Accused) Versus TEE REPUBLIC ............... ~ ~ • ~· ••••• ~ ~ ~ l • •••••• ,RESPONDENT · · _, ~or;~-,.:Prosecmtor) . .. ~ . J1JD@OON;, KOROS~•~ ir, ,. TJ.rl.s -~f:I an ?ppea+ presented by JGhe .App~lla.nt, one Nicodemus ~/o Shija • , • , -~. : ~: •, '. • ; • • . • I • .;- . \ • •._- ,, :. • • • ; ., • '. Who wa.s ob.k-ged ' . with and convicted . -of·offio~ ~reaking . o/s 296 ()f the.- Penal .· -,- . . . ~ Code• ~-ll~.....sen~to· 5 y~ars imp!t'iso~ent, -- HaJ:?,ce 'the· instant· ~ppe~l .. · ··-··. ·'" -----~~;fil.oh the. Appeiia.11t .challenges , his. ~onvicti~n. , . -~e facts are briefly that ,-~n 30/4/87, . there was Sha. ;1,186/:: in the sa.fe whioh was in the off:i.ce at the 66i::dira.l.ina.rket, Tabora.)illµ.Qipa:j.ity. According to the evidence of one Joseph Sha.nyango (PW.1) 1 the Appellant (2nd· Accused) -i:,as on 30/4/84 at 2.30 p.m. entrusted _with the key to the r2.ain door of the office,in which the sa.fe was. The sa.fe key was entrusted to the 1st· Accused, one Ma.bu.tu :Milund.umo. Mr~ IComba., the learned State Attorney, supported the conviction. With respect to the lea.med State, Attox-ney, the case f-or the prosecution was of the weelcest kind to justify conviction•.' In the first place, the Appellant was not the clerk entrusted with the ,, key to the saf'e~ It was his Co-Accused who fas entrusted with the safe key at the time of !mocking off at 2.30 p.m. and the sa.fe key remained oontinuously in the Appellant's Co-/~ccused. 1-s :posse.ss~on till the morning on 1'/87 when the money was discovered stolen from the sa.fe. Both Joseph Shangengo (P.W.l) and !nap. M<>ngi (P.W.2) te~tified that the safe was intact so that the key in the possession of the 1st Accused was able to unlock and look the ,I - 2 - safe fairly ea.siiy and smoothly. The safe having been locked by the 1st Accused before he left office how could the l..ppellant have opened tl1e sa:fe wi thov.t the· key? I.gain, one Vicent Wa.ndekwa (P.w.3) and one Hassan Ka.gozi (P.W.4) both being nigh twatollmen, who had been assigned to gu.a.rd the offioe from 6 .oo p.ra. to the next morning on 30/4/87, testified that when they arrived at the offence at the market place they didn't fi:r.d the l.ppellant being there. There is no evidence ti!at the i..ppellanJti ever· returned' to the office during the night in qu.estiono Both PoWo3 and PJWo,4 claimed to hq.Cl checked all the doors and windows and :f'ot:1.nd them having been properly locked.. But in the morning of l/5/87, Inspec'.'vor. lJongi.. (.E,Jrl~}_:who .vf-Si ted the scene on t:.;.e mor11.ing of 1/5/87r disoo-vered that the second doo;r of the office as s...11own on ·1;J.,.e sketch plan at latter "Ctt could be opened by simpl;y pua.1.ingo If the door at letter ncn was broken open despite ·i;he physical prosenoe of the two watchmen (P.W.3 and P.W-4), who h&d broken open the door? 'l".i1e J.ppella.nt could not have go11e to 'tho trouble of breaking open the cloor at letter "C" a.s ha had in his plzysioa.l :possession ove:r:-1ught Ji;he key of Kie office to the door at letter ,i,~n on the sketch plan. '11J.1erc is the evidence by PoWo3 and ~.w.4 ·thaJG in the morning of l/5/87 t "'.;he 1..ppellant unlocked the :f1"'0nt door 1 entered inside and then ca.me out SaJ"ing that money µad been stolen and that there was a breal~-age a.t the window through which ·b1le thief could have gained ingress i'to the house. It is difficult to believe such piece of evidence. 1.ccoming to Inspector I-liongi (p.w;2), tho ho le or crack seen at the alleged t-1i11dow . could not have allowed a man ts hand or finger· to be put th.rough~ How coii.ld. the App~llant have beei1 so un:reasona.ble a.s to suggest that a human being could have ent~red into the office through such a. small opening?. 011 the foregone observations, I would qt.W.{h. the oonvi--'.1-'.;ion and sot 9-side the sentence of imprisonmento Tlie /,.ppellal1.,.; should be relcasccl forthwith unless detained for other oausos unconnecte~ with this oase. Appeal allowed; /~!>GoGo KOROSSO, JUDGE. 28/6/91.