Chande Nassoro vs Republic (Criminal Appeal No. 14 of 1999) [2000] TZHC 490 (1 November 2000)

• Ii'J THE IIIGE C0U.fl.T OF TANGA CRIMINAL APPEAL lJ0.1 i4 OF 1999 CHANDE lJASSORO ••••••• .. v•~~O•o•<t.,A.PPELLANT V-xs., JUDGMENT The appella.11:i;., nmely CH.::..;;:;E; NASSORO, was charged. with. and convict,ed by the District Cou.l.'t of :a.Dt,a of shop breaking and stealing contrary to section 296 and 265 of the Penal .. Code4 ConsequentJ.y, he was sentenced to Jail for a term o:f five(5) years Being agg:rieved by that decision, he has now appealed to this court against both. conviction and sentence,. The facts of the case not his dispute, as established in evidence may be b:riefly stated as follows. On the night, of' the 9th /10th April 1998 the shop of the 00J;:1i)llainant, nai-nely PW.-1 A'IIDJMANI AKIDA. KAIZA, where is at Majengo area, within the l'lunicipality of Tanga was burgled thereupon, an; assortment of Ciga:rrettes and one calcul.tor at. valued at, shs. 733, 700/=• Tl.le i.."lcident was report,ed to the Polio e who set the wh..eels of investigation in motion. It has bee.."'1, deposed by Pw2 01\lARI lfWIJ.JCB.l.J1,fil:t, a taxi ·- cl:river that- on April 10~ 1998 on or about 8 Pelle, tha appellant wl10: was in the c_ompany of two .. othe:r pe:rsJns hi.red his -9,y,j_ from the Iv.Iabanda ya Papa ta:.,j_ - stand It is in his depos:i.tion that. the two loaded i.rlto his cab two big boxes which accor_d:ing. to his recollection were marked SWE..r ME11T.HOL, and drove to Street No9 where they alight.ad and off-loaded their two boxes.., It is further in his deposition that rarely fif't0en, (15) minutes latar he was arrested by plall'l.. - clothes -policemen from Mabawa Police .Station., Thereupon, they interreigated him in respect of the mission he had with. the appellant- and his ·i;wo• associates,.. He ul ta.motel~,. took bis interrogators to the spot whe:r.e the appellant had aligh teJ.t 1:amely

') PW.5 A'J:£iU'ItJU llii.S&.N who is ?''.·i2• s cal?; s shunter lent: . support to fill. 2'1f 'piece of evidence th2.t on the material:. date a.t the :releva.n-t. period fue appellant and !lis two: associates hired P'W.,2t s cab., In essence, the foregoing is no a nu:t-shell th.e evidence led by the Republic/Respondent no suppo:rt of their casee The appellant, doniecL his incolvemant :Ln the offa:."lce laid at li:Ls door. -RB· prote-sted his i!ll'rocence and urged the trial Court .. to.· a.cqui t him for month of evidence against him. The learm!d trial magistrate was saisfied .. that the evidence of PvT.2 had ci:rcum.sta.ntially est-"',blished the appe,lari t ts g•ui th., It is on the basis of tha·:, evic1.cnoe th2,t he convicted him as charged. The a.ppollmit. has in his petition of appeal impU{fi.ed the finding and conculusion of the trial. court. 'Ille grav2.men. of his complaint is tha.t his conviction was based purely Ion probability rather. than substantia.JJ.. evidence. The case for the Respondent Republic was <",'Jcn:t~~upon by ]tra; Rut%--rwelera., Principal. r:ltate .&ittorney.., Ile declined to support the oonviction on the basis that the av.ailabio evidence does not, at all establish the appellant I s (.,"Uith.,, I have gone t!:rough the evidence on record,. In my candid view, the only evidence against the appellant. is that of PWa 2. But, does tho.t- avidance ostablish hjj_s fuith? I hasten to answer in -the negati.va. . The evidence of PteT2, eVe..'1 if is to be believed me:re-J:y ' . . establishes. that, the appellant. a.nd hi.is, associa.t es had w:Lth hem· t-wo boxes with ·the inStlription if "Sweet- He1'tho:l.i,, That piece of evidence does not,m my vie,r, connacJ.;. he .,:-•,-on.1 1 '-'··; rii;h. the tJeft of P1T1•s property., t•lere probabilitJr and nc.,.i s1J:f.'f:.oien··;. ·to g:;rcund a conviction• ·There must be cogent, evid011ce to. oa a basis :fo:r con-il'ict'cn Not supris:i.ngJ.y, llr Ruta.gwelera declined to: support the convicti•,_, I find it extrc.:.:,1y insaf e to apllold the convict ion..i It is on the basis of the foregoing thA..t I quash, the conviction and set aside the sent6llceo The c\p_pella.irt. is to: be rel·eased forthwith,, unJ.esa hs is otherw:nse lawfuJ.Jy !letainad on some other purposc8,.,, DEL:,~VERE'D ,g,t; T.ANGA er thi,s 1.c:it. da.y of Ne,'iTerrbe.n 2.X') ~ in the p:resen00 of ·'-:he appellant. a.ncl llr,. Kitainda 1 Sta-he ,:;.-:;tc:-ney. . . . •. ··•-·4 ,, o,,..,,./3'4

.. • a tru.e copy of' the o.rigi.,."lnl&