19811230 TZHC Tabora1

a -

IN THE HIGH COUPT CF TANZANIA PT TPBCRA.

APPELLATE JUPISDICTICN (TABCRA REGISTRY) (Hc) CRP'INIL APPEAL NO.48 OF 1979 c/f Cr. Appeal No.50/79 ORIGINAL CRTh.INAL C/SE NO.227 CF 1977 OF THE DISTRICT ccur CF IPSWA DISTRICT AT ?PSWA. BLFCPE C.117 . SHILOGILE ESQ., DISTRICT MAGISTRATE TE3LLJ' YPCHL......... . • . . . • • . . • . . OAPPELLANT ;_.._ (cRIGINALACUSED) VERSUS. THE REPUBLIC.. • . ....... . . ••.•..•• .RESPONDENT. (CFIG.INI'L PRCSECUTCR) CHAPGE: 1st Ct. Shop breaking and Stealing c/ss296(l) and 26 of thePenal Code. 2nd Ct: Being in possession of Amrnuniations and 31(1) a nd (2) of Prms and f-imünitiôñ GrdinanceCap.223 of the Laws. JUDGMENT - TE!'BELE s/o YICHA and YUr'UNGJLI S/OYPCHA were 303.ntly Charged with and onvicted of shop breaking and theft c/s 296(1) and 265 of the Pea1 ode and being in pnawfu1 possession of amrr1tnitions c/s 3(1) nd 31(1),2 of trio rnis and Ammunitions. Ternbe1es/ Yacha was the watchman of the village shop which was broken intc and cash Shs.3,098/75 stollen. He statedthat h bd not seen thei fi ièbi'eak tiieshop and steal as he was at thetime asleep. 1'utunga1a s/a Yachii i ' the young brother of Tefrbele s/o Yacha. e d beeniv some cash and rounds of ammunition by t:e wife of.Ternbele i/o Yacha to keerimnsafe 4 buried them Inhis shamba. Th-seitems / ' & -- -. were eventually unearthedby thC pôlic e. Itwas-oT this evidence tha the two apc11ant were con'tec. rhe Reuo1ic, I fiten to add,

did nct support the conviction . I had a11owe he appeals on the Iearingdy. I qthed the c nvictions and st aside the sentences. I also ordered that td appellants b't free at once unless otherwise lawfully held*; ­ Th6 reas-on for the -dciiOn isthat there was no evidence at all against the appellaitts. Granted that the .1st appeilatit, a wat-chmañ wasr ölyd to .watch.the bóp yet--the-fundamental fact tshoLdrnétebe ignored or forgo.tteiii.e. 2that -he was-a humabëing and -ould thus fàlIasleep. It a s n ighttjme.HiSdeféflcOthat he had fallen s1éep 'ihen the shop was broken into. and money • . .. j- : -2- stollen shculd thus nothave been taken iightly. It was nQt manifestly false. Cue may, in moods of unjustified self irJor'tnce, state that night watchman are paid not to sleep but to work, but that arrogance cannot be supporterd by reality. The 2nd appellant, as already noted, stated that he had for safe custody, hidden the money and rounds of ammunition in his s1- cmbs. he found it safi to do so than to keep the Same in icuse. This is not in the atmosphere of riräl life n unheard of story. The money found was not his but that of 1st appellant's wife and it was mh1essthn - the money stolien from the shop. It could not in any - way have been traced to the stollen money. The ammunition belonged tb'the village for which the 1st appellant was working and against whcse regulations the

1st appellant had kept.at home, But the infringement of the village regulation is not. enough to have found the- cthnvictjbn. That the 1st appellant had the aiiunitior,? lawfully is very c1ear. .Ee.-brok stat, 1. av/ in havir g Ijetn. The story give' b'yt he 2 eliant 1ik:ewis.e rkes hi iodent of , hVing been inps'ession of the rouidso finuriiti.on cohtrary t'b the :1äw uner4lich he hadben charguc]. . :. ..... 7.; IncCncluS1l)n therefore, both appellants were found guilty cnci conviced oufnces on evidence that at nfOst- : created supicioii agbinst %hem. This is not enbugh .. . ., . . . .L . ,. YAHYP. RUBJ;1A, . . ,. .. ,. ,.... ., 1 JUE., . .. .. 30/12/01. . •: ~ . .-. . . . , ,... .. ,•, VJ V' ..'.';f.: . '• . . .. - - :, • - •- ., ., ...... . .-- . ry.. - ... . ,,,. . .,.' ... -, - ,. . -:... ... ...