19750503 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SAIJI.AM APPELIATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 256 of 1974. ORIGHJAL CRIMINAL CASE NO. 50 of 1974 . . OF THE DISTRICT COURT OF KISARAWE DISTRICT AT KISARAWE Before IC.A. KASSIM, Esq; District Magistrate. SALIM MOHAMED CHIKUKU ....... ·• .... •·. Appellant. ( Original Accused) Versus The Republic •••••••••••••••.••••••.. Respondent (Original Prosecutor) . CHARGE: 1st Count: Burglary, c/s 294 of the Penal codeo 2nd Count: Stealing c/s 265 of the penal code. JUDGEMENT lTYALL'i]JI ; Ag. J. The appellant in this case, namely one Salim MOHAMED CHIKUKU was charged and convicted before the District Court I of Kisarawe District at Kisarawe with Burglary c/s 294 in the first count and with stealing in the second count and was sent·enced to 8 years imprisonment on the first count and 3 years on the second count. Sentences were directed to run concurrently. The Prosecution case at the trial is well outlined in the judgement of the learned District r.1agistrate who tried the case. The judgement states: "The evidence for the prosecution shows that on the night of 6th October 1973, the dwelling house of Abdallah Kisangi (P.W.2) was broken into and some of his belongings stolen~ The thief gained access into the house by boring a hole through the wall very near the door and unfastened the bolt which secured the door. The thief stole a radio, a wooden box, various clothes, tobacco and half a sack of paddy. .J....LJ.V VVIJ~..1- Vt,.,t,.,.L.VI.V V.J,.. V.&.J..V UV,.,_,-'-'VJ...L J:'""-~~-""-""'..J ~•-- ..,__ shillings. Kisangi had packed the paddy in a nylon sheet before putting it in a gunny bag. This he did to protect the paddy f:com mice. Two days later accused was found by Hemedi Abdalla (P.W. 3) at one o'clock in tho morning carrying a heavy load. They greeted one another and in reply to Hemedi Abdalla Accused said: ''It is me Chikuku, I have a girl in here 11 • The witness was familiar with Accused voice, as he knew him beforeo Being suspicious of accused, Hemedi at once ran to Kisangi and informed him what he had seen. A short time later Accused was seen by Kisangi (P.W. 2), Hemedi Abdalla (P.W. 3) and Mohamed Abdalla (P,W. 4). Accused Wt.J still in possession of the po.ckage. They not only saw .Accused but he overpowered them and managed to escape. The load which accused left behind was found to contain paddy in a nylon sheet which Kisangi identified along with the gunny bag and paddy. Accused was not again seen at Kibaha where the offences were committed until 22nd Il'Iarc' this year when he was arrested by (P.W. 1) constable Pius 11 .. "In his defence Accused elected to make a statement from the dock. He denied the charges and contended that the gunny bag containing the paddy which was produced in evidence as exhibit I was not seized from him and that it was brought to the primary court of Soga where he first stood trial ••• 11 At the commencement of the hearing of this appeal, l\'[rs. Onyango Stated that this was a borderline case but as the hearing continued she could not support the conviction as the evidence of P.W. 2 and P.W. 3 appeared not to be consistent. At one point both P.W. 2 and P.W. 3 told the trial court that when they saw appellant during the night of 6th October, 1973, appellant was carrying the gunny bag but under cross-examination by appellant, P.W. 3 told the trial court that when he saw tho appellant, he (appellant) was standing besides the wall of a hut ('banda) with the gunny bag pressed against the wall. . .... /3 Apart from this inconsistency, there are other disturbing aspocts of the evidence for the prosecution. There is ho explanation by the evidence what P.W. 3 was doing outside at 1.00 a.n. at night when he claims to have met the appellant., People do not normally wander or walk about at 1.00 o'clock at night when they should be in bed. Again from the ovidence of P.W. 2 and P.W. 3 it appears that throe peor,le - that is P.W. 2, P.W. 3 and P-.W. 4 seized and grappled with the appellant in an attempt to apprehend him. Thero is no explanation how and why one person overpowered throe people. There was no evidence to suggest that appellant has extraordinary strength. Furthermore, the ev:j_donce of P.W. 4 that is Mohamed Abdallar shows that he alone was tho person who triod to apprehend the appellant. Ho told the trial court. -----" I woke up as a rosult of hearing Abdalla Kisnngi call for help •••••.•• I came out and a short distance from Kisangi' s house, I saw a man carrying half a sack ••••••• I ran to the man quietly and held him. It was accused. Accused was wearing dark clothes, a shirt and a pair of trousers o•••··•• Accused ovorpowored me, and ran. I chased accused but failed to catch him." This evidence is contrary to the other evidence. All this facts taken together should have given rise to a reasonable doubt about tho prosecution case in the mind of the learned trial District Magistrate who shoµ~d have in consequence acquitted tho appellant. The appeal is therefore allowed by quashing the convictions and setting aside the sentences on both counts. Appellant should be released forthwith unless held for other lawful cause. F. L. NYJ\.LAL;I AG. JUDGE. • •.• /4 Delivered in open court this 5th day of Marcb 1975 in tho presence of Mrs Onyango, learned State At~orney for Republic • :·} . . ;(._· //.- ' 1..-'':f'-•L (J < .. .. F -.L • NYALhLI AG. JUDGE. 5/3/75 ~·:·:•· ,·t .l..