19771222 TZHC Arusha

IN THE HIGH COURT OF TANZANIA' I" ;RUSHA

APPELLATE JURISDICTION in the District Registry at i-.RUSHA HIGH COURT CRIMINJL APPEAL NO. 104 OF 1976 ORIGINAL CRIMINAL CASE NO.' 101 OF 1975

OF THE DISTRICT COURT OF ROUJO DISTRICT AT MKUU Before S.N. SHARIJY Eaq. -------------- - bistrict Magistrate SIMON S/C JACOB ------------ -------------- - -------APP ELLANT (Original Accused) versus THE REPU 3LIC RESPONDENT ----------- -- -------------- --- ------- -- -(Original Prssecutor) JUDGE M EN.T MNZ AVAS, J. The appellant, Simon Jacob, was charged with and' convicted of stealing by agnt c/s 273 () of the Penal Code and 'sentenced: to a fine of shs. 1000/- or six months imprisonment in default. He was also ordered to pay shs. 7,355/no to the complainant (PW 1), as compensation. He is appealing against both the conviction and the sentence. There was no dispute in this case that some time in January 1974 the complainant and the accused entered into an agreement whereby the former paid to the latter shs. 6,300/- cash and supplied goods wor:-i shs. 1,055/- on condition that he, (accused), would run a shop-business as a partner of the complainant in the business. After running the shop for one -yeir the adcused, on 11/1/75 reported to the police that bandits had c me to his shop at night and robbed him of shs. 2800/- cash ad all shop-goods0 After investigations the pelice were of the view that accused's report was a fake and cbnsequently chorJd iir 'with stealing the money and shop-goods0 . ln his defence before this court th appellant argued that all the prosecution

witnesses told lies against him. He insisted that he was in fact robed money. and shop-goods. The learned state attorney was of the opinion thit there was ample evidence in support of the convicti•.n and referred the court to the evidence of the corn:..Iainant, (17W 1),cncl that of Albin Towo, (PW 2)' and Alloys, (17W 3), The two witnesses, (17W 2) and P.W 3) related to •the court that on the night of the alleged robbery they were with the accused in a -bar up to 10 p.m. when they ]eft to their respective homes. These witnesses are apparently close neighbours of the accused. Accused report in theo..ice and his defence in court was that he was robbed of the money and goods at aout 10.15 p.m by a single robber. According to the evidence of the his neighbours they did not hear any alarm from accused's shop. indeed the witnesses (17W 2 and PW 3) said that they arrived at their- homes accompanied by the accused (whose shop was adjacent to the witnesses' houses), at 1.0.15 p.m and that they did not see or hear anything unusual in accused's shop. There was also undisputed evidence that although accused's story is that he was rob'ed at about 10.15 p.m. he did not apparently raise an alarm till -2 -a.m.a . . . . . . , . ./2 -2- Arid, aQcording to the evidence of Detective Corporal Admason, (PW '5), the accused had reported to him that he had been robbed shs. 18.00/- cash. He did not

mention that he was also robbed of shop-goods. • And what is more the main door to the shop was apparently not hroken..intb. When asked .by. ;.- hi c(.urt'why he remained silent for five hours after the aliLged robbery he had no reply. With respect 1 coreewith the learned state attorney's submission that accused's, report to..the polic that he had been robbed was bogus; 'it, was a trick by the accused to defraud .his. partner, .(PW 1).11sthere was no such robbery thecrily reasonable inference was that the ccused. had stc.ien the monèy and th goods. The sentence of a fine of sh. 1000/- or six months imprisoneent in default cannot by any stretch of imagination he said to be e::cessive. On 'the contrary the accused deserved a more severe senteice. He is extremely lucky that this court has decided not to enhrice the Sentënce. The order thatthe appellant pays shs. 7355/- to the complainant stands. N. MNZ)\VS, ' : ........... J U- -- ARi,J5HA: . ' •. .. 221277 Appellant - present in person Ms chu for, the Repu.lic/ResponJnt NSM/GKK