Republic vs Montirio Solomon (High Court Criminal Appeal No. 4 of 1990) [1999] TZHC 87 (10 August 1999)

I}; THE H!GH COURT OF TANZANl~\ ,:,. I\T D/--.R ES .4f ,AAM HIGH COURT CRIMINAL JPEr"1L- NO~ 4/1990 . . CRlM!NAL CASE NOo 130/1989 (ORIGINAL) EPUBLIC VERSUS MON".l'lR IO . SOLOMON .. JUDGMENT ' .The appellant MOl:JlrlRO SOLOMON was tded together wjth another pers.,,n ANTHONY MAZIKU, ,,n a charge c-.>nta5nHlg a c ,unt :,f stealing_ by servant c/s 270 of the Penal Code. The part5culars of the offence were thnt· the ""' two persons j 0intly and t:>gether, bej ng empl ,yed by Mikumi Trude C1.>llege, · . . Kilvsa Distdct, Mor,.g•.)r,) Regjun, st,)le on 26.6.89 an injector pu the value of shs. 30,000/-, the pr:1perty of M3Jcumj Trade College which .:iinto their p,-,ssessj ,m by vjrtue ,-,f thej r empl,:,yment. ' V . . Both the accuseds den5ed the truth of the char9e, bu~ at the conclusion of thejr tdal the appellant, wh,, was the first accused, was found guilty and conv; cted .)f the •.:ffence charged and was sentenced to· · three years Maziku, wh,, was the second accused, was f-und not guilty and was acquitted by the court belw. The appellant was aggrieved by his c<>nviction, henc~,this, appeal to thjs court. Mr. Mkondya, learned advccatet appeared fur hj m j n thh o,:,urt. Mr. adud, learned state Attorney, appeared for the Republic; and supp,.,rted the appellatlt• s c,.,nvjcith,n. Both the appeliant and MazSku worked jn the garage at the Mikumi Trade ., College. T appellant was the assistant ,Jf Mazjku. They vaere mechanies. In .__j ... .,..: the gar88e there was a stvre: :fn jt there had been kept, at the time -j_ tu this case, an 5nject()r pump, amngst other spares. on 28.6.89 the inj ectvr pump d j sappe a red f<•r the garage store. Th jg hpened when both the oppellant and Maziku were w 1 rkjng there. Mazjku defended himself by saying that at l)ne p(1nt he left the garage to go and weld a pipe at a place -fl_; called Kidoma uutsjde the College premises. When leaving he left the keys tv the st<.:re where the inject.,r pump was w1th the appellant .. He .returned sume hours later and f"und that the inject .)r pump was missing. He immediately suspected the appellant. T·e appeliant sajd he did n<.,t kn,)w ·an 1nject~-r pump. He said he . came tc kn:.w abcu't its d:isappearance after Maziku sajd ' ' •)Ile had disappeared from the store. He ·said Mazjku sajd .they sh'.?ld remaln silent about it until , when their super.v1 s,, ..... ,..,,, .. .,,,.- · .r..._ ,p; -•1 ""' - Q, ~ ~~e appellant) nevertheless reprted tv Jcn'es Mtandu (PW3), an ipstruc.tur •qt the ·cullege. The api;>ellant ' / . . denied- having been left wjth·the keY to the st0re by Maziku_ when ij:he. · ' ' ~ l latter went tc Kjdoma. The learned maQ,ftrat.e was sathfied .,that Mazi;.ku told ;: . .-, the truth when he sajd he had Jeft' the keys t .. , the store. with the appellant when he left as forllcated ~bove,~j I I ,,

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• 3 He found that ev dence pointed to the appellant as the person who had stolen the pump, most. probably after Maziku hd left him-ii.th the keys. Mro Mkondya vjgorously attacnec this conclush 1 n by the learned magistrate. He states in gr,>und 3 Jf appeal j,n the Pet1t1on of Appeal: ... nJ. The learne<i Mngistrate erred jn swallowing fish bait- and sinker the statement of the sec.)Dri'· accused that he left tshe II keys wjth the appellant with,ut any.prof whats ever. I agree with Mr. Mk•nclya. Here the evldence was .)f one accused person against the ,_,ther, each attempting to exculpate himself by shifting responsibiU.ty f0r the l<JSS of the pump ont,i the 0ther. I think this was a case where -indepeni:'lent corroborative evjdence was required before d!Ciding on a cunvictfrn. Infact there was aw5t0=ss who could have provided cvrroboratj0n cif the ev1r.ence 0£ Mazjku. He js the ~~iver,one Maiko whm Maziku said he left with the appellant when he left for Kidoma. He was, f ...... • • curding to Maziku, present when he was leavjng the garage •. Why was this JS'Sotl•. ,._ / .. "il.)t called t'- C..>Dfirm vr 0therwfae the ev5dence of the secvnd acc:used'l This \ lrsun was crucial especially because the learned magjstrate-seellls to have , .fonvicted the appellant mainly 0n the basis 0f bhe evidence of his co•accusedt Maziku. I am of the view that the evjdence. gruund!ng the appellant•s convictin in this case was very weak. It certajnly did mot reach the standrd set by the law i.e. that proof of an accused's guilt should be beyvnd all reasonable duubt. Fl.)r these reas,·ns, the c)nvictj :;n has tu be quashed. I hereby quash it~ l also set aside the sentence imp,..1sed on the apellant and direct that he ::u:::eased from prfa ·,n f0rthw:lth unless helrl there f•-'r/f. me other 711tul /rf!!I~~~~ . ~ :-DAR ES S/J..AAM 10th hugust, 199~. Miss Swai, SoA. e·:,zt the Republic Mr. Mkondya, fur Appellants. L. A. A. KVANDO JUDGE ------·