Simon Katowa vs Republic (High Court Criminal Appeal No. 157 of 1977) [1977] TZHC 524 (30 December 1977)

APPELLATE JIJRISDICT ION HIGH COURT CRIMIN.AL APPE.AL No. 157 OF 1977 (Original Cx'iminaJ.. Case No. 1257 of 1976 of the District Court of Dar es Salaam District at Kisutu) SIMON KATOWA (Appellant) Versus THE REPUBLIC (Respondent) Before: K.A. KASSIM, Esq., District Magistrate OFFENCE: Being in possession of property su.spected. to have been stolen or unlawfully obtained c/s 312 (1) (a) of the Penal Code Cap.16 Vol.1 of the Laws Act 26/21. J U D G E M E N T KIMICHA, J.— This is an appeal against conviction and sentence. The Appellant in this case was convicted of being in possession of property su.spected to have been stolen or unlawfulli obtained c/s 312(1) (a) of the Penal Code and sentenced to 9 month& •impri- sonment. The facts of the case as found by the trial court are as given in the District Court Judgernent which is repvoduced below for easy reference. Ok JUDGEMENT The three accuseds - SIMON KATOWA, JUMA HUSEIN and ELLY LINUS are jointly charged with being in possession of property suspected to have been stolen or unlawfully obtained c/s 312 "(1) (a) of the Penal Code. The evidence adduced by the prosecution shows that at four thirtr on the afternoon of 10th July last, both constable Ramadhani Pw.1 and Militiaman SPECTORY PW.2 saw a truck about to leave the Port area through gate No.2. Accused 2 Juma Husein was the driver, accused Simon was sitting next to him and acuused 3 ELLY LINUS was seated next to SIMON accused 1 on the floorboard in the drivers cabin, wee all three accusedso were sitting, both the constable and the militiaman found a small sack containing four rolls of vitenge. These were produced in evidence as Exh.l. All three accused denied ownership of Exh.i and they were jointly charged under section 312 (1) (a) of the Penal Code.

sed 1, did plead with him, saying"MTUSWA]VLEHE" when he questiorAed them in connection withthe cloths This alleged confession is inadmissible in law as it was made to a militiaman who is vested with powers of arrest similar to those of a policeman. Both prosecu- tion witnesses stated that accused, 1 9 SIIVION was sit- ting together with accused 2 and 3 in the óabiri and that Exh.l was on the floorboard. According to the militia- men Exh.1 was just below accused 1 SIMON, who was in the middle. All three accused.s gave evidence on oath denying possession of the vi -benge. Accused 1, SIMON, who is a Acargo askari claimed to have been arrested at the Port Police Station where he had escorted the other two accu- sed. He claimed to have pursued the truck from a bath- room somewhere in the Port Area to gate No.2 and that all the time he was blowing his whistle. At the gate he introduced himself to the askaris on guard and infor- med them that the truck contained stolen property. How- ever, on their arrival at the Port Police Station, he himself was arrested and charged and the other accused.s were released. Both accused 2 and 3 asserted that the sack Exh.l was brought into the truck by Simon accuse 1, who simply asked for a lift. Since accused 1, SThION, is a cargo askari, I do not believe accused 2, the driver or accused 3 would have given , him a lifth;in the cabin, where the sack Exh.i was placed on the floorboard. Unless the cargo askari himself consented to its removal from the Port area. Having seen and heard Constable Hamadhani and militia- men Spectory I belive as they stated that immediately before the search accused 1 SIMON was sitting in the drivers cabin, and that SIMON did not blow his whistle or chase the truck to the gate. Accused SIMON simply' alleged that both the constable, and the militiamen gave false evidence against him, and that the driver Juma Hussein and accused 3 ELLY LINUS likewise falsely accused him of having been in possession of the sack Ex.l. The only witness who supported SIMON accused 1 was DW.4 AMOS MILINGA a fellow watchman or cargo aska- ri, of his who I believe gave false testimony. 'AMOS MILING-A is not a witness of truth. He deliberatelr gave false evidence before this court, when he said he and accused 1 SIMON blew his whistle. It was only 4.30 in . . . . . .

to witness the spectacle if SIMON had indeed blown his whistle. I find the evidence against accused 2 and 3 Juina Husseni and Elly Linus insufficient to prove the prosecution case against them beyond doubt and I accor- dingly acquit them. I find the case against accused 1 SIMON proved beyond doubt and I convict him as charged. I reject his defence as false. (K.i. KASSIM) DISTRICT MAGISTRATE The Appellant appeared in person during the hearing of his appeal. After reading the record and after considering the appellanta submissions before this court I am satisfied that there was sufficient evidence before the lower Court jiistifyin the Appellants 9 conviction. The appeal is therefore dismissed in its entirety. (.K IM M.P ICHA) JUDGE Delivered in open court this 30th day of December, 1977 (M.P.K. DVIICHA) JUDGE w