19760420 TZHC Arusha

.1 • ' S lIT THE ic i COT UR C'd hui - ' ;T I \ ( •--. hIGH COURT ORII.r jLEiT1ILI. 1). 85 0F.]$75 • ORIGIiL CRfl7hiA ChSEO. i166 OF. 1974 • OF TIE DISTRICT COURT 0l\I:D EZh-DI3TII.Q-2 hT iUHEZA BEFORE: . A. MJITA Esq.' ,Ditrit •ipi;r:te (i) EZEIIEL 1TIKOD]U (0ri0ina521d cucci)...... (2) OIT TIhODEi..J (Oriiial 4th Accused) .) versus I T ... 0 • 0 •• .. o . ......... (Ori;inl i'ooecutor) JUDGi. UHT 7hcri this ampoal cje on for h ri; 'oil 26/9/75 I a11ooc3. the apLca1 quaoled b: onvictiois'and st aside the itncss and oro:cod tJ;ic release cf tb a15pol]_auits unless hold f o r othor la'tful caue but I r..oervod..iiY roasons icr tae decision. i will flQv prucood to iVO those •• one i1cief1U ot12Cr!iOq The appellailts, nanoly Ezekiel ref errod heroin as the 7st Apellaiit .iid iondaaieli ..:ocIr.u, otherwisE; reforied heroin ao the 2nd Appellant, were jointly c1iarec1 with two others with the offence of Storo1roakih c/s 296(1) of the Penal Code. The charo aaiiIt one of tho accused as it,idram under Section 86(a) of the Cri:iiial rocsciurc CocL and t.1. oeacr accused was qccuid 0 i0 t$L I CourG. LiC Fj't c Second ApDollants • wore '.onvicteJ and sentenced to 5 years inprisonnent, The:: appealed to this Court 'aiI1et\ the 1% convictions 'and c3entdnc. 1 and the a:.'oal was dealt with as a conaolidated ap al. / It was the rc'sccutioai c that on the 9/'lO/74 the lot 11j1joLLant hirod a

landrovor free.. t.i; let Accused (the OflO accuittcd) to be driven 1y th let nccus0c 1 . frau Moshi to Anani in Liuhoza District to coll..cb a, rater pUfip at Kwaakoro Toa Estate. On the way Jo •Kwaeoro Tea Estate, the lot accused and the lot aoo11aiit picked u the. 2nd appo11ant vho is a 1roth:.r of cne is c ap'e1lai1t, ana anetnc'r person in rsspcct of wilee the. charos were eu'oscçuontly withdrawn by the prosocution.). Upon rcachin Kwardcoro Tea Estate at nit, the party too: a water ]J P1i1d n china ifi a fs.reo be1ond111L to Kaekoro Tea Estate and loaded it irlto • the landrovor an2 • started their jc'ur:eoy 1)acic to hloohi. The 1aidrover hvever broke down not f r froa the caraCe. The apeeliants 1rnloaded c chin an flic it in 30 1 0I thoil lf the 10 b accused with illS landrovor, inf :relin: hin that t].ea2P5l1alts were do1n to look ±'r 1:,1t0rietjVO :Leai10 of transportirii the nachino to I-ia shi • - • T.LLCS • • 00 • • • •.•*.•• ./ 2 - - The let accused was fiuic1 with the landriver and. arrested. br the tea estate viorke:e the. following; nurninf after they hd discovered the n:,chinc :.aissin, fro: the arae. On infornation :ivcn by the let accused the hidden rachine was found and tiic appi1ants were traced and arrested. Now ho entire prosecution cac a;aist the appellants depended on the evidence of the let aceused who was acquitted. This peronvias undoubtedly an

accc:eplice and the learned trial district naietratc realized the point but hcIound that the let accused was a roliaiDlo .rson and after warnin hincolf of th, dan.or of convictini the apci1ants on the / uncorroijorated evidence of an accocp1ico the tria1 nagistrato accepted that evidence and convicted the ape11ants. I agree with Tr. Lonboko Learned State 1ttornoy that the convictions cannot be supported on. the evldence. With due respect 9 the learned. trial district aistrato was wrong in holding th:;b the let accused was reliable, since a ce:aparlson between his evidence and that of P,W.4, who was the real owner of the land.rover su..:csts that .tho let accused could. have been lyiw; in his sbor' about being hired to do s Jot) v;iteoui knowledge on nis parc thnt i..io job. involved theft. He clainod in evidence thet he had sought and obtained the pernission of P.W.4 for the alleged hire arrangenent to go to aani and coilect tao aecaino. But .L.7 .4 -Gold. the trial cOuTt in his evidence that the 1st accused 9 who was .W.4's driver 9 dis appeared. with T.W.4 's landrove•:e without the knowledge and consent of P.V14 who had to rocort the incident to the police. Clearly had the trial naeistratc considored the contradiction ietwocn the ovidence of let accued. and t.:G cf 2.W.4, he would not have aold the lot accused to ho a relioble person. Tee trai aagstrace would pro oaoly have convicted instead of acquittin, that person. That why I allev;o& this appeal. -. c ............ .. (F • L. 1ILITL) C? JUDGES • Judgement delivered. thts 20th day of 1pril .1976 at i'rusha in open Court in presence of Hr. iaay,. State ittornoy. . LN/MTPM. kc:. JUIJGE. • -