19850711 TZHC Arusha

IN TE IG-T CC' (: TIIA

VQ S CRIMIEAL A?:.iI fe.25 CF 1979 c/f Crinina1 Aeal .33/1979 GRIGIJ1.L CRTL.:.I:.AL CASE NO .800/78 .OF TE DISTRICT CC..T C ARUSA AT ARUIA BEFCRE: 13 AK.."ARI Lsq. RE3IDTLAGISJ?RATE 5oLrtNTCIt NfEIE I OTTEE?. ... A1IJ1NTS V;rsus TEE REPU'BLIC 1LESIC1DETI JUD.ESEI'TT 1t •• ..- .;'.'''Zt .° Ot in ?Ttika and Domin.Lc: N. el:e were jointly charged with stealing by servant c/s 271 265 of the penal code. It was al1eg.. 1it on the 19th of Auuist 1978 at About 15.30. .ifl. being .rsons:enJloyed by Co.works as Nachanics they jointly and to;her stole one Buchet rase pump valued at s.:s.1965/- the pr of the governae...;. Upon ponvction they were each sen; ncsd to 3 years i .rJ.s:niehto A third psoil Joseh hioleko 9 who was chargd.. with receiving the stolen pump, was accaitted. The appeals of th io appellants are consol.i. According to Yusu.f kc.ia (I5) the two appellants shared a houno. On the 27/8/78 he p.sed near their house a.a found thi:r:elling. As a rit c± the quarrel the fir:t .t cvic.ted the 2nd a:y.Uant fron the house. /5 offr:id ap.eila 2nd. accused. a rc.... in ILlS house. On th:e day L; the first appeil..:it....b ing &i a 5bt±' in Sinon áa' Arusha. On. inquiring frc: ;. first appellant what had caused the quarrel 9 ?\15 was told hat it was over a pump appellants had jott1y stolen and sold. I15, being a Security Oflicer, repor to his office. Cor:oral Ritundu. (2v/1) arresod

the two accud. The 2nd accuc;d. showed hijz where he had sold the pump. It was found with th 3rd accused who readily athaitted having b:ught it for Shs.500/-. The charges were then :Lnst.LLed. I.-f defence the first e1lant Othnaan Litika denied the the't nid posed the questio:a a they could have st.iw. the punp w.i.le the gate to th Conworks garage has a V/atcTh:an coreir'ntly on guard. /2 The second The second appellant also denied the theft and stated that he did not know the 3rd accused. ie also denied having quarrelled with the first ao .pellant though he admitted to have shifted to the house. of P1.15. He then suggested that the C.I.D. acted on their OWl"i in-tracing the pump at the working place of accused no.3. hc learned, trial magistrate did not believe the appellants. The question is whether he was correct. In his memorandum of appeal the first appellant Ot.hman Mtika has argued that he could not have stolen the pump without being detected and secondly that he could not have confessed to PW5 knowing him to be a security officer. I cansee no impossibility in having things stolen from the Comworks despite the presence of watchman. These watchmen are mortals who can be bribed or become negligent in their duty. Secondly the fact that P75 was a security office may not have been known to the, two accused. Since P75 was a friend of both accused persons, I see no

impossibility for the first accused, to have explained the cause of the quarrel between him and the 2nd accused especially after boozing beer. The effect of alcohol on him could easily have persuaded him to let the cat out of the bag. The prosecution case was further strengthened by the fact that the 2nd accused appears to have told Corporal Kitundu to whom the pump had been sold. hre is no reason given to suggest that Corporal Kitund'u had cause to lie against the appellants. Finally the evidence of the 3rd accused that both the f:rst and second accused had sold the ouap to him for TJhs.5OO/ and - that later -bi police recovered it from him, though accomplice evidnco, was corroborated t; the confession of the let accused and the ovidence of Corporal Kitandu. As regards the identification of the pump, though it did not boar any specific mark, it was clear from the evidence of PV15 that such a pump had been missing from Comworks, that the two appellants worked in the section from which the pump was found missing and that when the second accused was asked about it he initiallr stated that it had been taken by a soldier from. the T.f.D.F., a fact which turned out to he untrue. I am satisfied that the charge was proved beyond reasonable doubt and accordingly dismiss the appeals entirely. L.J.R. CHUA 11/7785