Lwitiko Mwenisongole vs Republic (DC Criminal Appeal No. 77 of 1998) [1999] TZHC 324 (6 May 1999)
Judgment
IN THE HIGH t:OURT OF TANZANIA "· .
(OC) CRIMINAL APPEAL NO~. 77 OF' 1998
(FROM MBO.ZI DIS?-:RICT. COtfrlr 'CBIMINJJ., .CASE·•.1-Jo •. 43/98):
LWITIKO NvJEri!ISONGOLE • .;_ • ·• APPELLANT
VERSUS
"' 0-, • • o o· ·o • 0 • 0 " • I 8 RESPONDENT
The--appellant Lwitikn_s/• Mweriisongole has appeald against his
conviction.of theft •f 1• tract6r discs of the Valment Model belonging
tn G,1'1MARQ }:arms Lt.de - The appellant ·is' represented by the_ leained Ml;'.
Mwakolo Advocate. The Res;pondent the Republic as represent.e&by the
leaJ?ned ·1·-1r. Mulokozi (State Attorney) did n-..t support- the ·conviction.,
The reasons advanced by both learned c.eunsels fer not suporting the
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convictions was that the discs must haye been stolen bef..-r;-fa the shifting
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·of the st•re goods was done on 13/3/1998 from the _old st•te to the.new
:r,
·store. During the time •f shifting the stores gds fr"lm the old st4P;'e
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to·the new store - no.st0.ck takiri.g was done.
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The trial Magistrate the learned Mro Lupea .{SIM) .,-eonvicted the
'l-.fo accuseds who are the appellant and one J eremia .Mbuba ,-th_e 2nd accused
with theft and receiving stolen property respectively on '-"the basis o_f
'the key helding and the confession of the 2nd accused .. The system of
keeping-keys to_the tore was that only the appellant as the storekeeper
·kept the keys to the store., Since ·the 10 discs wer p:i;-oved and showed
to have been kept in the store and lastly· they were not -here, the
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appellant ·must have stolen the_m, acco:tding .' to the legal 1easoning of
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the trial magistrate., This possibility "'!las· dupport~d by the confession
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of the 2nd accused who in a cautioned'Sfatement admitted ~s exhibit PB
confessed to have been given_the 10 discs of tractor by the appellant
.. 0 0 ./2,,,
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for purposes of selling them this confession was self incriminating for
he confessed that he went to , collect the· discs from the store of G1iliil.RO
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"' J.,. ·---
Ltd on instructions·of the appellant for purposes of selling th~m with
the 2nd accused· as the ,agent for selling the discs.· Since the 2nd
accused had just been dismissed as an employee o.:f G/11-'iARO Ltd he knew
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pretly well that the discs belonged to GA!'-L\RO Ltd.' -S°:
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he was
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..P~!J-essing to have received the 10 discs for selling them whi1e ,they
were stolen p5:'epertyo He was a guilty receiver of stolen property.,
ii. self-incriminating confession which implicates a co-accused is
good evidence against the co••accused and can be a basis of the· conviction
is it is believed by the court to be true., On the face •of it, therefore,
the trial court convicted the appellant on the basis of a corrobo1lf-incrimi.:..
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natir,ig confessions oC.:the 2nd accused which was criminally implicating
the appellant too. There Wf thation of the PW1 Aron Buya who
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testifid that. the ptock taking done on '-0/3/98 in the store the keys of
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which were kep.t by the appellant., He was found on 23/3/98 with a lo~s tf
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✓ 10 tractor discs of the sub1ect of the.charge. On the otlier
han, theconfession of a co-accused which is self- . .,. incriminating as well as implicating the co-accused must be truth1'11 not ' a cncoction.. The trial magistrate should· have dil~ected to his mind to the truthfulness of the confessions of the 2nd accused before basing a conviction on it. Was it truthful, is the question this court must ask itself before -
sustaining the conviction and sentence of the appellant.· I" answer this Jf' question that it was;partly truthful and partly not truthful. ·n was ,truthful to- the extend that it was indeed the confesser the :2.vicl accused ·, J eremia Mbuba who transported the discs from Gi~M.,.RO Ltd to the 3rd accu,sed.'(PW3) for purp•ses of selling them. On the other hand .it was not truthful that it W8,p the appellant. ¼ho sent ):lim to take the discs \· on 21/3/98 :t;tnm GillfoRO Ltd to Mbozi 'I'own Vwawa.
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3 But, there is an eye witness PW3 Sandala Kandonga whose bicycle was borrowed by the 2nd accused for the purpose of carrying the said 10 tractor discs who testified that it was on 17/3/98 (not 21/3/98) when he saw the 2nd accused ca:rry the discs from Ilombo to the 3rd accused, Vwawa using his bicycleo By this date of 17/3/98 the stock taking had not been done as yet by PW1 who did it on 20/3/98 and discovered the missing 10 tractor discs. Th0 appellant could not have given the 10 discs to the 2nd accused later on 21/3/98 from Gi',Mii.RO Ltd for the discs were not seen by PW1 at G/J~\R0 Ltd on 20/3/98 and the 2nd accused had actually been with the 10 discs on 17/3/98., The appellant in his own confession indicated to the police in his cautioned statement that he suspected the 2nd accused Jeremia Mbuba because he had access to the store prior to 13/3/98 when he was sick to whom he gave the store keys to the 2nd. accusedo The prosecution failed to dispute this fact. Even the 2nd accused did not dispute this f~ct a.,.
d appears to support it indirectly for he confessed in his cautioned. statement that prior to 12/3/98 the day he was terminated from employment he handed over his working tools to the appellant., It is possible be handed t.be keys of the stores back to the appellant on 12/3/98 after he had already stolen the 10 tractor discs from the store and hidden them in Ilombo village where he was seen by PW3 in 17/3/98 carrying them in PWYs bicycle to PW2 tho 3rd accusedo This left a doubt which should have benefittcd the appellant. I therefore, quash the conviction of theft I acquit him from theft c/s_s 271 & 265 of P.C., I set aside the sentence of 5 yeaxs imprise:nmento JTJDGE • 6/5/1999 • . :' ' ' DISTR°ICT )RmIS.Tifo.R MBL'YA