19770707 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA APPELL/\".'": JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 46 OF 1977 ORIGINAL CRIMINAL CASE NOo 215.0F 1976 ~F THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA • • • • e • • • • • • , .• Resident Magistrate WILLIAM CHINTIKA. a • • 0 0 0 0 e O o •••••• Appellant (original Accused) Versus THE REPUBLIC. • • • • 0 C, • • • • • • Respondent (Original Prosecutor) C~a.l:'_ge_~: Stealing c/ s 2~5 of the Penal Code.

JUDGMENT MWAKIJETE z J. The appellant was convicted of bur~lary and stealing. He was thereafter sentenced to three years imprisonment on the first count and six months imprisonment on the 2nd. It was a concurrent sentence. The allegation was thnt on the 5th day of September, 1975 at 20.,, hours at Mpwayungu village 1-Jithin the district and region of Dodoma he broke into the house of one William Chalula and stole from therein cash shs, 6,955/=, three pieces of "_Kitenge 11 valued at shs. 81/~ and one vest valued at shs. 15/~ the property of William Chalula~ There is hardly any reli-ilile evidence upon which to sustain the con vi cti on. First 1 the evidence on record is not clear as to the time the a:leged breaking took place. It is thus difficult to say whether the offence was burglary or housebreakin·g. Tne search alleged to have been conducted by the co~plainant was illegal in that he was not empowered to do so. In any event the pieces of cloth alleged to have been seized during the search had not been adequately identified as property of complainant. And, in fact, appellant also claimed that the property belonged to him. Not only that but the trial magistrate had also remarked that he was not satisfied with the identification. In all the circumstances, I entertain grave doubt that appellant had admitted having committed the offences. If he had really done so voluntarily

appellant would undoubt~dly have repeated the admission \or confession before the village chairman~ There is no suggestion that he did repeat the alleged admission to the village Chairman. Had he done so· the village chairman would undoubtedly have given evidence to confirm it •. Appellant was not cross~xamined either on the allegation of admission. Appellant's escape per se is not sufficient evidence upon which to ground a conviction• With the above inconsistencies in mind the charge against appellant ·cannot be said to have b.::en proved beyond all reasonable doubts. Accordingly the appeal is_allowed, the conviction is quashed and the sentence set aside._· Appellant is to be released forthwith from prison unless otherwise held for some other lawful cause.- The order of compensation is -also set aside. And as to who is the owner of the pieces ·of cloths seized the same may be resolved by way of an interpleader suit • . Delivered in Court at Dodoma this 7th ·day of July, lt77 M•. J • MWAKIBETE

JUDGE