19790111 TZHC Dodoma

eecM , IN THE HIGH COURT OF TNZiNI i AT DOdOliA APPELLATE JURI SDICTON CRIMINAL APPE. .L NO 187 OF 1978 (0 RIGINAL CRIMINAL CASE NO'. 736 OF 1976 OF THE DISTRICT COURT OF DoDoI'IA) YASINI SAIDI MWINYIGOGO. 0 o 00 : o o .A1;pellaflt (Original Accused ) Ve r s US THE REPUBLIC. 0 • . Respondent (Original Prosecutor) Charge: Burglary and Stealing c/ss 294(1) and 265 of the Penal Code0 J U D.G.M ENT JONATHAN, J. AS fairly conceded by abe Reaibiic there was little evidence for the conviction eainst w ich this apea1 has ben brought. On the relevant night th._ complainant's house appear to have been broken into and scen. items of furniture stolen. About a month later the houseof thciirst accused, BASHIRI, was searched in connection with sum o:hflr oifanco for which he was •. already under arrest, whereupon it tTu1spired that the second accusec RAJAJ3L who was his eld, .r broL hr, had transferred some items of furniture to another house. That house was then searched and the exhibit furniture, 1 it.:.r idntified to he that of the complainant, was found therein. The two accused when asked appear to have said the furniture had hen brought to BASHIRI'S house by the appellant, who was then arrested ard charged along with them as the third accused. That was all the proa.cutton evidence. The first and second accused in thr defence stood by wb ct they hi told the police, namely, th t the furniture had b an efltrusted to the first accused by the appellant. The cecond accused as the reason for moving the furniture to another heu::ce said he had done so as had thought his brother's housa rath..r insecure while he was ía in custody. They called one HABIBA,/housegirl of the first accused, who testified that the ee:ilant had in fact kept the furniture at that house. The appellant, for his part flatly denied ha had kept the furniture at the first accused' s house. The learned resident magistrate in his judgment observed tint HABIFiA hod no reason to testify falsely. As the first d's servant she certainly had reason to take sides. Her lot lay with the first accused as her employer and his imprisonment would almost certainly, have put he out of the job. She howevir had little to lose by testifying against the apall nt. Her cviJr'ce ~ , tia.2refore, could not properly have befl the basis for th epa.11ant's convictions especially as she was a defence witness, and there being no evidencce cap ble of corroborating her account it was patently wrong to convict him. Indeed, he should never have r en called upon to enter defence as the prosecution had failed ta load even the slightest evidence against him. . . . -2 - Accordingly, the is :11owed, This acquittal will not however result in th pp:.] mat's release from custody as he has other convictions for woich he is serving sontence. Delivered n open court. this 11th day of Jonuary, 1979. P. M. JONPTH -. JUDGl