NA TZHC Dar es Salaam13

tflc_-~ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM HC. CRIMINAL APPEA.L IDo 197 OF 1995 ORIGINAL CRIMINAL CASE. ID. 556 OF THE 1994 OF THE DISTRICT COURT OF ILIUA DISTRICT AT KilBUTU BEFORE NINDI RESIDENT MAGISTRATE. SELEMANI SHAIBU AND 2 OTHERS~. o o. o o •• o. o .APPELIANI' VERSUS THE UNITED REPUBLIC O O O O O O O O O o O O b ••• t, 0 0 0 0 .RESPONDENT. --------- JUDGMENT KA.JERI, PRM. (E.!.J.J Three appellants namely SELEMANI SHAIBU alias Susu, SAIDI MOHI-i.MED alias MADOIDO and GIDFREY MPINGA who were at the trial the first, second and ~ifth accused person were together with others charged and convicted of burglary c/so 294(I) of the Penal Code. In the second count the said appellants were charged and convicted of stealing c/s 265 of the same c;dc~ Needlessly pointed out for pirposes of this appeal, of the seven others who were each charged with a :.charge of receiving stolen property c/s 3II(I) of the same Code, it was only the seventh accused who was upon conviction, sentenced to three years imprisonment but the rest were acquitted. But this seventh '.r: accused not appealed to this courto The appellants were each sentenced to concUITent terms of imprisonment for five years ~n the first count and two years in the second count respectively, The facts of this case as were · established by prosecution evidence were that for unknown period, the fifth accused had been employed as a houseboy/shamba boy who had among others duties had houseboy duties and was looking after four dogs for which he used to let free at night time for purposes of keeping security of the house compound. The house of the complainant comprised of a sitting room kitchen and store on the ground floor while the first floor housed bedrooms. The family of the complainant together with a house girl were sleeping in the main house while the fifth accused was leeping in a servant• s quarter which was as usual at the backyardo In the day in question, the complainant and his family haci r8ti:ced for the night leaving behind the fifth accused listening to a radio while the housegirl was washing dishes in the kitche~ All three door had been locked exdept the door to the kitchen which used to be the exit for the fifth accused. On the morning of the 2e5a1994 ••••/2- ' .I 2 - the complainant woke only to discover that much as there were no visible evidence of burglary a radio cassette four band Nationa . three heads of sewing machines wall clerk, a waterfilter, recicooker a meal grinding machine, an electric kettle an electric iron, juice machines, shoes and clothers, all valued at shs.1,200,000/= missing. When he learnt from the fifth accused that he had forgotten to set free the dogs due to forgetfulness, the coraplainant smelt foul and decided to make a report at the Oysterbay police st~tiona And so the wheels of investigations were set in motion leading to the arrest of the three appellants and J..uckily almost the most valuable of the stolen property were recovered from those to whom the same had been sold for value o The Ist appellant did not make his defence because he had jumped bail but his appeal will all the same have to be considered. The. second and the fifth accused denied con:nni tting the offenc es charged. The learned trial Resident Magistrate (as he then was) carefully apa.lysed the evidence before he grounded the convictions and the .S!entences now under appeal~ I have carefully analysed the evidence as well as the four grounds of appealo Two grounds of appeal are in ' I respect of the first two appellants while the last gr.-ounds 3 a:r;:.'. /:· are for the third appellant. The first and the second appellants complain, inter alia, that the c8tliewas not proved beyond reasonable doubt and that there was beforeLtrial court no watertight evidence· that could have led to conviction of them. They also introduce in this appeal a fresh ~~tter being that the prosecution had failed to produce evidence of finger prints on doors and windows~ As for the same appellant they complain that the should not have been convicted on uncorroborated evidence of an accomplice like the seventh accused. The third appellant in the same way laments that he was convicted in absence of direct evidence and that the burden of proof was not satisfied 0 In my considered view I have no doubt in my mind that indeed the house of the complainant was burgled intb and that several household goods were stoleno I am very much impressed by the -;:;·- , speed with which the investigations were carried out by the police who recovered most of the valuable property that had been sttleno However I agree with the appellants, and the,Republic through Miss Mkwizu learned state Attorney supports them, that there was no }.; rcc·i.: evidence to support the conviction of the third appellant. • oo/3- - 3 That he had not opened for the dogs was explained by the third appellant himself when he said that he had forgotten to do SOg The omission was not necessarily a complicity. Even the housegirl or arry other person could have conspired with the thieves. Conviction of the third appellant canr..ot b~1 supported and the sentence should be set aside. As for the first and the second a~peJ.lants, the police upon receiving.information that the groud of Susu Seleman had been responsible for the commission of the offences they confirmed this information when the seventh accused confirmed to have bought ·:-::,.~ stolen property of the complainant. Even from those to whom .the proper~y was rc~overed 9 the source traced back to the first and the second accused. I am mindful that thre~ is a bearing to this evidence a fact that the first appellant and the seventh accused jumped bail before.,._ m~ng their defence such that there is a gap to the defenc:e casei Miss Mkwizu rightly supported tho convictions and sentence of the first and the second appellantsc ... '1 The sentence on the buclary count ought to have been the bare minimum of three years but bearing in ~ind the value of the stolen property this court hereby confirms th9.t ~entence. The third appellant's appeal is ~l,owed. The third appellant, GIDFREY MPINGl\' S conviction is quashed and the sentences set asideQ He should be set at liberty unless otherwise lawfully held. ·Appeals by the first· and second :appella1;-ts dismissed. {:J/,./,,f'-.!J<.-/\b..;__ , , GoC.Mo KAJERI} · PRM (EoJ.) AT DAR ES SALAAMo ~'=-»~--=- I CERTIFY THAT IT IS A TRUE COPY OF THE ORIGINAL. DISTRICT DEPUTY RIDISTRAR