Bahati s/o Njanga vs Republic (HC Criminal Appeal No. 21 of 1999) [1999] TZHC 485 (6 September 1999)

IN J.'.HE maw: COUP.:.l. 1 OJ:' l1.ANZANIA -l'ii HBEYA HIGH COURi1 CRIMD.'JAL APPEAL NO, 21 OF 1999 ( ORIGINAL CRDiWAL CASE no. 135 OF 1998 MBOZI DISffiICI' COURI') BlffiAJ.1I s/o NJ ANG Ao 6t, o • e. • .,.,., ~ ... o •. 1, o o o .i ~ e., o., o.,.,., .,,APPELLANT VERSUS . . REPUBLIC O O .. 0 o-e. C, 0 ~ D O O O · Ii O O O O Cl ., l' 0 0 b O O 4 0 ,0 •• 0. 0 0 0. e.RESP01TDEN'.L1 . . JUD.GE.NE NT .Ram 'buf a. . PLThC ( FJ ) l'lie appellant one 13aha:ti '.Njangn 1t2s convicted of brealting into a} b'uildirtg on committirlg an offence c/s 296 (1) of the Penal Code and was . . . .. •. '. sentenced to 5 years imprisonment by 'i:he Distrit Country l;Ibozi~ Being dissatisfied ·with the decision he file;d this appeal_ cin the following - grounds&:... arldti.ced 1,· l1hat the videncejby· the prosecutin side <4d _nqt s:~~1-.s. and prove the offence of breaking' into a bu:i.ld:ing as alleged in the c:ba:rg~ sheet and pD.-rticulars of the offehce~ 2!) That; the appellant was not found w:l.:hh any or some parts the stolen propertya 3~ l1hat, it could not be invnlid with 6ertainly that the , appellant was the only person who,hd the goldeh opportunity to commit the crime with which he was charged. 4o ·l1hat it was wrong in law and fa.ct to believe that ihe appellant_conuct on the 3rd and 4th day of November, 1998 had anyth:L"ig to do witl1 the commission of the alleged crimea 5c, Since the prosecutions case was not proved to the required .. standard of proof it was wrorig ih law and fa.ct to convict the appellants As the appellant did not wish ·to be present hearing proceeded in his absence ¥.tro Mulokozi 'W'ho appeared for the Repubiic did not support the conviction on the reason that it wa.s nerely based on suspicion rather than circumstantial evidenCek Re alleged even for circumstantial evidence it has to be pointed to the guilt of the accused without giving room to some other possibilities~ In the above case he agreed th2.i. any- one could have entered the: ya,:td and stole the said motor cycle after it was pked by the appellant some three days earlies~ Since even the Republic does not support the conviction for want of .. sufficient evidence then I have no·thing to do at the end of the a.ppea.l but to allow the appealo ..

-2- rhe appelhuri; should be released· imrned:fately from prison unless he is lawful held for-so:r:ie oi;her reasQns,. S ~ T ~ ·, bu:r.' ' .. o.b-11.tu vfo,.rn . a PRilWIPAI/ RES IDEI'!J:l Ml!.GISi 1 RA:]2:E (EJ) 6/9/1999 .. .. ... ""· _ ... . . •• J. ' • . ... ·:-.,.:-;'-':< ;, • . ' •