19770701 TZHC Tabora

1N THE.SHIGH COURT OF TANZANIA

AT TABORA

APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NO. 86 OF 197 6 ORIGINAL CRIMINAL CASE NO. 419 OF 1975

OF THE DISTRICT COURT OF KIGOMA DISTRICT AT KIGONA. Before: .J.E. C. Nasanche, Esq. R/Magistrate YUSUFU RAJABU . . . . . . . . . . . . . . . . . • . . . .. . . . . APPELLANT versus THE REPUBLIC .........................o...4.o.. RESPONDENT CHARGE Sc 1 ' Goods in -transit c/ss, 269 (a) and 265 of the Penal Code.,

JUDGMENT NAP I GANO: The appellant Y'USUFt PAJABU was tried jointly with three other persons on a charge of stealing goods in transit, contrary to seQtions 265 and 269 (a) of the Penal Code, namely that on 3/8/75 at night at Kigoma Railway Station they stole two bales of clothes valued at Shs.. 2974/= which were in transit to Burundi. The district court convicted three of them, including • the appellant, of the offence and sentenced each to three years imprisonment. Only the appellant has appealed against that • ..dOCiSioflo The prosecution case revealed and firmly established that a gr.oip of. people broke into the Railway Station and that they • also broke a wagon in which several bales, destined to Burundi, had been loaded0 They took, away two bales.. It was at night and • there was no one, apparently-, who noticed the incident.. The • appellant and another, manwere then on duty as watchmen at the • place, but the appellant clarned that he did not know anything a.bout this theft.. The prosecution evidence also established - that on 4/8/74..at night a contigent of about ton Policemen set up an abushat a place calledl3ushabari. This followed a tip - off that the culprits would distribute the stolen goods among themselves at that place. That information turned to be true.. At about 11 p.m.. five or six people arrived there carrying -2-. some bundles and when the Police sprang

up from their positions those people scattered in flight, leaving behind their bundles. The Police pursued two of them and succeeded to capture them. The appellant Was not one of the two, but his fellow watchman was. Those who madegood their flight were not identified, most probably because it was dark. It later transpired. that those bundles contained some of the stolen clothes. As I have observed, the appellant denied any knowledge of the theft and it is obvious that the case against him was entirely circumstantial. As I see it, it nly consisted of two strands. First, that he was on patrol duty at the station during the time of the theft. The learned trial magistrate was of the opinion that the appellant could not have failed to notide the incident. Secondly, that his co-worker was one of the two men who were later apprehended and found in possession of some of the stolen goods - in (equr-'-e ('f -tish. It is submitted on be''1..f of the appellant that these pieces of evidence were not sufficient to prove the charge against him. I have given the matter my earnest consideration and I think that there is force in that submission. I think that the finding of the learned magis$rate that a watchman could not l:.ave failed to notice the theft was rather arbitrary. For there was no evidence at all as to the area a watchman was supposed to patrol and there was no reason to suppose

that it was a small one. As regards the second point, namely, the part!cipation of his fellow watchman in the crime, I think that the learned magistrate did not suffi- ciently Consider the possibility that he could have done that behind the back of the appellant. I am of the view that that was a real possibility. For the evidence shows clearly that these two watchmen were not together all the time during that night I think, therefore, that the evidence as a whole cannot be said to have been conclusive of the fact that the appellant was a party to the theft. In the event, this appeal is allowed. The conviction is quashed and the sentence set aside. The appellant is to be set free forthith, unless he is lawfully held on other ground. Pronounced in Court. Mr. Sengwaji for the Republic. Accused absent. Tabora, D. P. MAPIGANO, 1st July, 1977 JUDGE.