Lwitiko s/o Mwenisongole vs Republic ((DC) Criminal Appeal No 77 of 1998) [1999] TZHC 225 (6 May 1999)

Th THE HIGH COUT OF TANZANIA AT3EYA, '. (DC) CRflINALAPPEiL NO 0 77 OF 1998 (FRoM OZ DISTRICT COURT CRIMINAL CASE NO. k3/98) LTfl(O ISON , .. . .. . . . ,. . '. . .. JPNT VERSUS 'o THER1IPTJBLICO.. a •...., RESPONDENT JUDCWi1T The appellant Lwit±kn s/.Mwenisongole has appeale& against his convition of theft of 1tradtor discs of the Valment Model belonging to GANARO Faris Ltd. The appellant is represehted by the learned Mr. Mwakolo Advocate, The Respondent the Republic as represented 3py the learned Mr., Mulokozi (State Attorney) did nb sipport- the conviction. The reasons advanced by both ; "learnéd c..unsels for t supnorting the convictions was that the discs must have been stolen béfire the shifting of the stpre goods was done on 13/3/1998 from the old store to the new store, : During the time of shifting the stores g.ods from the old st•re • to the new store, - no stock taking was done. The trial Magistrate the , learned Mr, Lupenza (S) eQnvicted, ±he two accuseds who are the appellant and one Jeremia Mbuba the 2nd•,accused with theft and receiving stolen property redpec,tively on the l2asis of the key h.lding and the'conessiQn o f the 2nd accused. The System of keeping keys to the store r was bhat only the appellant as the storekeeper kpt the keys to the store, , Since the 10'dis'cs were proved and showed to have been kept in the store and lastly they were not there, the appellant must have stolen them, acco±ding to the legal reasoning of the trial magistrate, This possibility was si5pported by the confession of the 2nd accused wbo in a cautioned statement admitted as exhibit PB confessed to have been given the '10 discs of tractor by the appellant

• 2 - for purposes of selling them this bonfession was self incriminating for he coiifessed that he. went to' ---coilet the discs from the sto±'e of GiNARO Ltd' ~ on'instructions of the appellan for purposes of selling them with the,.2nd acctsed as the agent for se'ling the discs. 'Since the 2nd accused had just been dismissed as an employee- o.f GAMARO Ltd he knew pretly well that the discs belonged. o GAMARO Ltd. So, he was - ponfess ing

t oave - reeived the 10 Ics for selling them while they were stolen property 0 He was a guiltr receiver of stolen property. ,eifincrithinating confession ihich implicates a co-accused is good evidence., against the coacc6can be a basis of the - conviction is it i'believed by the court to be I d ue. On the face of it, therefore, the trial court convicd te appellant on the basis of a self-incrimi- nating cønfessions -of the 2nd accused kih was criminally implicating the appellant too. There was the corro1oration of the PWI Iron Buya who testified that t h e stock taktng doe on O/3/98 in the store the keys of

which were kep.t by - the appellant He was found on 23/3/98 with a loss of 10 tractor discs of the sub3ect of the cge. ' - On the otp, hand, the confession of\a co-accused which is self- incriminating as. well as .irnplicting the c\o-accused must be truthful not concoction. The trial magistrate should\have directed to his mind to the truthfulness of the confessions of the 2nd accused before basing a

• --' ôonviction on it, - Was it 'truthful, is the question this ourt must ask itself before
• sutaining the conviction and sentence of th appellant. I answer this queotion that it was. partly truthful and partly not truthful. It was truthful to the-extend that - it was indeed the confesser the 2nd accused Jeremia Mbuba yzho transported the discs from -AitO. Ltd to the 3rd accused (PW3) for purposes of selling them. On the other hand it was not truthful that it, was the appellant who sen him to take the discs
• , -- -, on -21/3/98 from GARO Ltd to Mlbozi Town Vwawa -- , ,

-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 carry the discs from Ilombo to the 3rd accused, Vwawa. using his bicycle 0 By this date of 17/3/98 the stock taking had not been done as yet by PWI who did it on 20/3/98 and discovered the missing 10 tractor discs. The appellant could not have given the 10 discs to the 2nd accused later on 21/3/98 from GAMARO Ltd for the discs were not seen by PW1 at GAMR0 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 accused0 The prosecution failed to dispute this fact. Even the 2nd accused did not dispute this fact and 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 0 It is possible be handed the 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 PW315 bicycle to PW2 the 3rd accused6 This left a doubt which should have benefittod the appellant. I therefore, quash the conviction of theft I acquit him from theft c/ss 271 & 265 ' of P.C. I set aside the sentence of 5 years imprisonment. -Lwi.tjko s/o Mwenisongole I set him free from iniprisonxiient and he should .- be dsged immediately. :-.. •. E.L,K, JI0 JDGE 6/5/1999. ertify that this is a true and correct copy of the original Tudgement. . DiSTICTISTIJR