20120104 TZHC Dodoma2

J IN THE HIGH COURT OF TANZANIA AT DODOMA PRM. CRIMINAL APPEAL NO. 21/ 2011 (ORIGINAL CRIMINAL CASE NO. 59 OF 2010 OF THE DISTRl~T COURT OF KONDOA AT KONDOA) YAHAYA SAID KITOE ...........................................APPELLANT VERSUS THE REPUBLIC ..................... ~ .......................... RESPONDENT JUDGMENT HON. R. I. RUTATINISIBWA, PRM (EXT.J): This ,.matter araised from Criminal Case No. 59 of 2010 of Kondoa District. There at the appellant was arraigned for stealing C/S.265 of the penal code cap. 16 RE. 2002. It was alleged that on 2nd May, 2010 at or about 16.00hrs at Ksese Disa Village within Kondoa District, the appellant , one YAHYA SAIDI @ KITOE stole maize from the shamba of JOSEPH FRANCIS all worth Tsh. 1,200,000/=. The matter went on full trial at the end the trial court convicted the appellant and sent him to jail to serve a term of 5 years. Aggrieved by the / I decision he preferred the instant appeal. The memorandum of appeal contained a number of 5 grounds. After a thorough perusal I found that the said grounds can be put together to mean the following. ■ That the stolen property was not tendered as exhibit . ■ That the adduced evidence on the prosecution side failed to prove the offence charged. ■ That the prosecution was full of contradictions. r The Republic respondent was represented by Mr·.· Nchimbi, learned state attorney. He was not prepared to support the convicti6n. . . The appellant argued .that the adduced evidence was . full of contradictions. That while PW1 said thatthe appellant wa~ found in the shamba stealing at the. morning hours, .other witnesses · said· that the appellant was found harvesting maize at about4,00pm. ·. · ·~ ' Mr. Nchimbi also came up with that contradiction. I tried to comb the proceedings. I agree, that PW.1 said that he went at the shamba_ at \ morning hours. PW2 and PW3 who testified that they were with PW1 said that they went at the shamba with PW1 at evening hours. .. '. J l) l That contradiction is vivid and clear enough to shake the truth in tt{e 1I prosecution case. It is confusing and any one can doubt the credibility of the said witnesses. ~ { } . I I I The learned counsel said in support of his stance that the story by . \ I PW1 that they found the appellant harvesting maize but failed to raise · ·, alarm to call people who could assist in effecting the arrest was not true . ., ; I That under normal circumstances he could have called people for ) ' 1 assistance. That argument was also given by the appellant. \ t ·' I have no reason to challenge the two. It is the common practice \ that once a thief is found stealing all means should be employed to effect '' I ; the arrest. When that is departed without good cause it raises doubt. •' ' \ '' ,I 1 ,} Since the prosecution side left much to be desired it is my view that I I I the conviction deserves to be quashed. I proceed to do so. The sentence ,, I follows to be set aside. J ,.·1" The appellant should be released forth with if not held on other I I lawful matters. / . , ,'""'-- ,..,....... ... ' . ..,. r' ,. ·.,.....,_~-"-.....~ .- .., I I ·• Appeal allowed. . .... · .. ,, . . . . - . ': .·~' ' . .. ;' :· ·.' : .. -. ,·, -~~ ' . ·•- -.· -... (R. I. Rudf1Nis1s~A)'' .. PRM (EXT.J) '":·: . ,· :·:' ;_ ~} 4/1/2012 pf;,;•'.;_ ;f;.. -~·- Right of Appeal explained. Delivery in the presence of the appellant MS. Shio State Attorney. ~ - (R.I.RUTATINISIBWA) PRM (EXT.J)