19960529 TZHC Tanga

IN THE HIGH COURT OF T/.NZJJHL. If£ T/J.':IGA APPELLii.TE JURISDICTION . H!GII COURT CRIMINLJ., .Af>PEAL NOo52 OF 1993 ORIGINJ.L CR]]ViINh.L C/;SE NO. 11 OF 1993 OF TIIE DISTRIC,~ COUR'r OF KOROGWE DISTRICT Kr KOROGWE BEFORE F.f;.o Ki.NIKI ESQo DIS'TRICT Iviii.GISTRil.TE YJlSINI HAJJ I'1/4PUNDAooooooooooooooooooooooooooJl.PPELL/Jfr VERSUS THE UNITED REPU13LICooooooo•o••········••o••··RESPONDENT JUDGEMENT The appellantj Isack George and Salome ~ugustino were being jointJ..l1 charged before the Korogwe District Court with the offence of Breaking into a buil,>ng and stealing therefrom one radio cassette, one bag and cash shs.90,000/=o The charge was laid under So296( 1) of the Penal Code. They did deny the charge~ !~t t~18 end of the trial only the appellant was convicted as chargedo He was sentencc(:'c to five ( 5) years jailo Ile has appealed the conviction and ·sentence to this court. The evidence of the Prosecution went largely lllldisputedo It was established that a store of hfrican Bar and Guest House 1 Korogwe the property of one Frank Mchallo was broken into on the morning of 3o 1 o1993 and the above mentioned properties stolen therefromo On the same day the appellant was found at Mnyuzi while in possession of the stolen radio cassette, the bag and ":-c,L shso 13j 500/=• He was handed over by PH4 Mbezi to Mnyuzi police posto PW5 NooD4263 DoCo Said told the trial court that the appellant told him that tho 2.ccus,,a. Salome had participated in the commission of the off'enceo PW5 never elaborated" Salome was an employee of the said Gw;st House where she was · , known as "Mama Guest." The appellant had been lodging at the said Guest House since 1o1o1993o The appellant told the trial court on affirmation that he checked in at the said Guest house on 1 o 1 o93o On the morning of 3. 1 .93 he told Salome tl'1at he was intending to go to Mnazi to see his family but was going to come back in the evening0 He then took leave of Salome and told her that he was heading for Old Korogwe to look for transporto He had on him cash shso 15 9 000/=o He arrived at Old Korogwe at around 10o 15hrso Because he had missed regular transport he decided to hire a bicycle for shso300/= up to l~cwakwani 9 but before he left 9 Salome arrived at Old Korogweo She handed over to him the bag inside which t!:;.ore was the radio cassetteo He then left, only to be arrested at Mnyuzi that afternoon by PW3 the son of the proprietor of the Guest houseo He admitted to have been :iJ.1 possession of the radio cassette and the bag but said that the money was hisa Ile aecord.ingly denied to have stolen anything from the Guest House as those properties - 2 - were given to him by -Salora~ to send to iVJ:nyuzi.. l..nswering the first of the two questions put to him by Salome on cross-examinationj the appellant tole_ the trial court that he had missed the p_erson she had instructed him to hand over the said articles at Mnyuzio For ha- part Salome testified that on 1,, 1,.g3 at about 7.00hrs she left Once at flie Guest house her home for duty at the Guest hous~L..she did a general cleaning up of the premises.. While performing this task she saw her fellow work-mate ( PW1 3ena) and PW'3 at the guest houseo She never elaborated what they were doing tb.ereo (However PW1 had testified in her evidenco tt..at on the morning of that day she was at the guest house doing 11 general clean up11 and on completion she handed over the keys to "Mama Guest who is Saiome n) o 0 Salome. further testified that while she was going about her cleaning up activities she saw the appellant who toJ,d her that he was going to retain his room for tha~ day and paid her shs,.200/= for the same., She then continued. with her business and later left for home., On her way home she saw the appellant with the bag but she never asked him anything as she had no susp;icions ,aesinst him. Salome further testified that when she arrived at the Guest house she was told · of the store breaking and theft.. It I s when she went to inform PW3 that she had seen the appellant at Old Korogweo Jmswering the questions put to her by the appellant she admitted that he had told her that he would be going to Kitopeni a,."1.d further that w:::.ile she recognized the bag he was having she nhad no doubts with hi.m., 11 In view of the fact that the breaking into the building and the s-~oal:i..ng of the radio cassette and bag ( which were undisputably found in the possession of the appellant) as·well as cash shso90 1 000/= were not disputed the only issue before the trial court ( and here) was the identity of the culprit or culpri·ts., The learned trial District Magistrate, unfortunately, never. took the troutlo to ca:rry out any investigation on this and reach a conclusive answer., To hil, were in black and white Ile never . thingsLmade aJ1Y a't'temp't to ana°.Lyse tne evidence before himo /..J.l that he clid :m h~,--; purported judgement, which does not qualify to be called a.· judgement, was to give a brief summary of what eact of the five prosecution witnesses said and without in anyway even attempting to sa_y• briefly also, what each accused said he thus concluded. "According to the evidence adduced by the prosecution, and the exhibits produced in court in support of this evidence, I find the 1st accused guilty of this offence, as .regards the 2nd and 3rd accused persons there is no evidence to connect them with the charge., Thcreforej they are acquitted under section 235 of the CoPoAo" While it is true that there was no evidence at all going to connect the 2nd accused with the charge, there was undisputed evidence which was gTavely incriminating against the accused Salome., The trial magistrate, unfortunately, - 3- ., i.never even alluded to this evidence 7 if at least only to reject it (but vi:;_tb. reasons)o This is tlle evidence of the appellant. Going by the record of the trial court the claim of the appella;y;; that it was the accused Salome who had handed over to him the stolen artidGG found in his possession 9 was not discredited during cross--examination ricr was it denied by Salome in her evidenceo Tliio means that the evidence of thr; appellant remains unchallengedo That the account of tb.e appellant might possibly be the truth• is enhanced by the undisputed evidence of Pl'T1 9 · PW2 and Pvf4 to the effect that tl;e break in and stealing was discovered at r,1j.d-da.y when the appellant had long left the guest houseo When PW1 left the guer=:t house in the morning she left behind Salome 2nd the store had not yet be~ ·1 broken intoo PW1 never said that the appella.--it was at the guest house w::icr,. she left., Salome testified that when she left the guest house for home a:n J~ descharging her morning duties., j11ile on the Wa;f home she came across . -~:, appellant who was having with hiL1 the stolen bag., This must have bee11 ,:. ,;u~~ 0 J__i i: because if the appella..--it had broken into the building and committed a t:"::;.'~-t. therein? she definitely would have disco~.rored the same before she lefi :. ) guest house. If indeed the appellant h~~ committed this offence and b g, ·1 parading ax01.ii1d with the bag which Salome sa-w and recognized why did s' .c ::wt ask him to account for his possession of their bag .which she knew had :.•<' ·,;7 kept in the 1° H: <\ store? 0 8 Ilaving considered these factors together? as well as the undispi.;:~c. evidence of the appellant I am satisfied that the appellant receiveu. ';~"-"-'"' articles from Salomeo The evidence on record is not strong enough to c _.- x ·'... c ; one to believe tb.at when receiving them the appellant knew or had reasc~ ·· believ:e the same to have been stolen or unlawfully obtainedo T.b.is'J incl.;:;cc., :>J G. position taken by Ivlro Mwaluko, learned State L.ttorney~ who did not wisl;. -to· support the conviction of the ap1,ellanto In the light of the above I hold that the conviction o:f the aPI.1e . .:i.rLt, was against the weight of tho evidence. ilad the trial magistrate evaluate:.t the evidence before him, he would not have convicted himo This appeal is , a.ocordi1i'gly hereby allowed in its entirety,, The conviction is hereby ~ . .:i.asl::..cc'. and the jail sentence set aside. · If the· appellant is still in jail ho io to be released forthwith ·unless otherwise lawfully held. ( / ... ,,;, . (E.M .. K. RlJ"'TiiKf.l'JGWA) -~- JUDGE 29/5/96