19870713 TZHC Dar es Salaam2

• Ihl T:I!:~ Ir·.C:_:; COURT OF T.-. ,•-;;:~-~~ L Lh~ J..T D Art ES ; ..'.-.L:"\.A!'1 HT.G:H .COURT CR:r-1::.:?--"'P.L .'.I'?E'.·,,,:, NO, ' OF 198? QR:IGINAL CRIMIJ\Tfa.!_, CA.SE )':re~ 'L'.t:;8 OF' 19&6 ' '. /OF.THE DISTR::::cr:: l , ~ co,:·:~i:t ~:.: - r.1:.T_.). fL ,\">; ·'· :: ,'-1'1' '..,.::-sUT'J ~ B.1:fore l(l'o ,CHAC!-IA •., :·:;:;.s~:i)!?··.:: :::.•Ii'·>: . ,;-·:·:.·, r----.... SALEHE MOHAMED e;\:o,,o,,,,,,,"''•·,,•,,·, : .... C: .· . ,. o o o ,:. ., ';; ,,':,., .. o .. APP El,LA1'TT (crigi"ai~Accused) THE UtHTf.D REPUBLir..: . ~ ,, ,., o ,_, o ,, ~ .., ,, ~ o ,, o. o RESP ONDE1'TT (o~ig;nel prosecutor) i,~;- r' . . --=...z~::r..~.,:-::..~,.,.,....., C.:UDGEMFi'.:1·J~ MAINA, Jo ; . The appellant, salehe Mohomed? was charged j_,.. the district eourt with receiving stole~ propertyo He was acquittedo . The district cot1rt, however 1 orc:iered that the gearbox which the appel .. lart was alleged to have received 9 be returr,ed to the complaiT--ant., This appeal i.s agair,st that ordor7 of the disb:ict~court. '' The prosecutio!"' r;~vide,.,ce a.1J.<?g8d t·r:.d: the appellat1t received a gearbox which had b;,,,C!" stole--- r;y;' /·-.' the . f:L:s-:: •.. .. ac•:,~-,ts-ed who was cor,- -. : . " " vieted of stealing c'\l"d SG?'tel"'ced'<,tp thr0e years imprisorimer,to su.t ~ •1 · there was no eye ·:r.i t'.l"O,::iS :!:. · ··tt, ("-:' ·· D ::-ged r·eceivi.,,g, ~-Y" that r,ot a . si,.,gle witness saw !the appelle.,--tf'.receivi~.. g the. 9earbox fro!~\, the first accused or ar,yof'e elseo 'l'J·.2 prosecutiot, ··.evide~ce aga,t,.,st the appellaflt was circumstar-tial .. rt was based or, the ider,tificatiori of a gearbox found fitted i.,.., the appella~tis motor vehicleo The alleged theft was committed or, 14 march "i.9860 The appel],ant;s motor vehicle ·, - ~ ~ was stopped by Police or 9 April 1986 whe~ the gear.box .,~Js allegedly ide,..tified to be the O"'e stole"' from the complai,.,anto ·n,_his evidence the e0mplainant~ PW1 Peter William, gaid he was o-r,J.y told if the theft ard he could not ever ider-tify the gearbox., He :celied o,., his mechanic J?W4 Idi Raj abu who purported ta ~.de~tify th.e.•.'g~_arbox. The appellant, or the other hand, said that the ge~ .r.box bekol"ged to him a,...d he called- 0 wit,...esses who supported.him. The cruci_al poir,t in this case is on the ide.,.,tificatio,... of the gearbox. The ·onus was o,., the ·pr0sec1.,.t.ion tc prove beyond reasonable d9ubt that it was the c.omP,lai"'a""t's gearbox:o Idi Rajabu said.that the gearbox was new. sut the,one fou,..,d i.,, the appella~t~s motorvehicl"e wa::; welded.. In fact the Po:i.ice ::-el eased the appellatit, s rnotorvehicle because the gearbox i,... it 'was -·ot ideT"tified b-,· be that of the com- - 2· - Titu$ told the court that the OoCaD.• had ordered its release because there were ro marks o,., the gearbox. If there were ~o identification rna.1<:e why did the· Pclide Seize the gearbox agair-, surely if there were any marks or "'Umbers, he complai"'a,..,t would have poi~ted them o'Jt the firs_t day the vehicle has seized by the police. the appella,.,t told the caurt that the gearbox belo,-,ged to him. H1s ~viden~e was supported by cwS Idi Mtambalike who had himself welded the gearbox a,..,d also modified it. Idi Mtambalike was familiar with the gearbox. He gave a detailed descriptio,., of it and why he ~dified ~t. His evide,.,ce was crudiel a,.,d there was ,..,o reason to d4sbel,ieve him. To s.upport the appell aflt, there was the evidence ! of an i~deperde,.,t wit,.,ess, teol"'ard Ma,.,or-1 who was called by the eour~, rte was a,., assistal'\t workshop ml'!'!"'ager of a c11mpa,.,y, o.T. Dobie, wh~c:h deals 1"' the .type of vehicle 1 !l!!SSAl',T, like the o"'e from, which the gearl:)c»t was stolel'I., Now, Leo..,ard Ma?'lol'li told the g•1utb~ iPI diiipute was modified a,..d soldered.. court that the That was in support l of the ev~de,.,ee givel'I by ows Idi Mtambalike that he h~d modified the gea;b~I :tt wes therefore rot ,.,e\~ as the complaira,.,t• s mechanic, PW4 :Cdi Re.jabu had said. There was absolutely r-o evide,.,ce that the appelle~t had ir aT1yway 1Tlterfered with th~ gearbox after it was re\eased by Police ard before it was agai,., seized a"'d taken to the Pe>lS.ce Static,., f,.,r a sec::md t.imeo , AS ~egards serial rumbers, Leo,.,ard Ma,.,o?'li said, a,-,d there was n<;> reasol'l to disbelieve him, that the Japa...,e.se compa"'Y which manufacture w,esan ?d1'11 buses does ,.,ot write serial ,.,umbers OTI the gearbox. ser1a1 numbers are o,-,ly show,., o,., the er,gir,e a!"d chassis. so the fj.gures appear1,-,g Of' the gearboX, EXhibit PI, were labels used in dete~1'11ng e0011,.,9 capacity duriTlg the process of ma~ufacturing \he parts. The eviderceagairst the appellart beirg exclusively circumstuncial d~d_not establish that the gearbox f~ur-d 1"' the.appella,.,t•s moto;vehlcle was that of the complai~a~t. The learred state Attorney eonceded that the trial magistrate failed to coTlsider the evidence adequately. There was ro positive evide~ce to establish that it was the eomplairert•s gearbox •. The gearbox belorged to the appellant a~d all the evide~ce po.1.~t to that ·co~clusi~r. - 3 - This ar,peal ·.is allowed.. The order that the ·gearbox be given to the complai~arti pet~r Williamt is set aside. It is ordered thot the gearbox. !:.i1~:,uld be returned to the appellant. ~tl\ ~ (~1 V'D0 . w•JO MAIJ\1A JUDGE 0 Dar es salaam 13 July, 1987 Korneye state Attorney for the Republic . ' j ;\ .·.........