Emilian Tilia vs Republic (High Court Criminal Appeal No. 22/1999) [2000] TZHC 478 (11 October 2000)

I I IN ~ HIGH CGurtT ol" 1 .rA1'iZANIA • ~~GA HIGH COURT CRU1INAL APPEAL N0.22/1999 ORIGINAL CRIMUJAL CASE NO. 100 OF 1998 OF THE D/COURT OF ltiBINGA DISTRIC'l' AT MBINGA Before: P.E.P. Mlay, Esq. Principal WMagistrate Versus; 'rn:E REPUBLIC RESPOND.ENT JUDGMENT Damas Mbuli (PW.l) was asleep on the night of 25tlv26,th ~ . 1998, when at darm he was awakened by a loud bang on the door. When he woke up and uit a torch he- di$covered that his door was broken open and a coffee pulping ma.chine was missing.- ·.JU.;so missing were one frying pan wch contained coffee and two bags· o{ coffee. 'i'he complainant reported the .-pp . llant to have been one of the people who were behind this burglary and theft. So upon this report D/C Omary (PW.2) and other Police Constables set out for Nyoni Village where the appellant and. the complainant reside. PW.l and PW 1 j . . awakened the appellant. He was arrested immediately after opening the d.OO•• : • ~ 'J - : - - J .. • • • PW~.2 went on to testify· thus,· in· the learned· trial magistrate's lenguage:- as • 1 ••• • On the veranda we found grass/if cored taking on the veranda•••• We found the sufuria which was identified by the complainant as his stolen one ••••• The 3rd accused told me that the sufuria was not his. He as well told me that he did not know hed it come at hi.s home •••• 11 (Quoted verbation) ,A;5 Mr.-Manyanda, learned State Attorney, has correctly pointeQ. out the appellant was convicted partly on the discovery of the ~eying pan on his ~ompound covered with grass. This, of course, is very weak evidillfU• 2

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A;nJ'one with ill - will against the appellant wou.J.d have dressed '1.p such a scene in order to put the appellant in trouble. At best, therefore~ the evidence of this discovery amounts to mere suspecion of the weakest kind. Another piece of evidence which was used by the trial court to link the appellant to the alleged crime was that when the Police acted on the information the appellant gave them to the effect that the 1st and 2nd the accused had stolell(pulping machine 1 the said two accused persons were found in possession of it by the Police (PW.2). By all m9ans this obe~~ tion is \llfounded because the lst and 2.d accused were arrested by Miti Mapunda (PW.4) in company of other l'rilitiamen. PW.4 handed over these men to Simon 1'iapunda (PW.3) who is described as a sub-village Chairman. It is, therefore, not true that the 1st and 2nd accused were arrested by PW. in. the first instance. I am satisfied, upon the foregoing observations, that the conviction is unsound. In the result the appe8l against conviction and sentence is allowed. Conviction is quashed and the sentence is set aside. The appeliant should be discharged. forthwith unless othervJise held on account of some J.M. I"'iACKANJA, ll/10/2000 For Appellant (at his on option). Mr. Manyanda 1 State Attorney; for Republic • . I certify that this is a true copy of the original. AG. DIS'illICT HEGLSTRAR 1