D.P.P vs Lembris Loishiye Mollel (RM Criminal Appeal No. 45 of 1996) [1998] TZHC 2478 (18 August 1998)

0 ·---- ... __ _ • IN THE RESIDENT MAGISIB.ATE COURT OF ARUSHA AT !i.T.?.USHA ElCTENDID APPELLATE JURISDICTION HM CRIMINAL APPEAL NO, 45'nF 96~ ; (c/f H/C ·er.Appeal No. 63/96 from D/c Arusha Criminal Case No.222/94) · •· THE D ,P .P ••••••• •·• • ~ •• ·, • •• ; .••• • APPELLANT Versus LE1BRI3 LOSHIYE MOLLEL • •• .-..• .:. • RFSPONDEl'IT JUDGEMENT W I N, B. KAPAYA 9 PRM EJCT • J The respondent Lembris Loishiye Mollel was arraigned before 0 • ' Arusha District .. Court (B. B •. Buhoma Esq.RM) on a cge of store br aking and stealing c/ss 296(1) an~ 265 of the Penal Code. He was • • • ... ·• : .• ., J . charged wi~h neglect to ]'.ll:'event a" felony c/s 353 of the Penal Code as an alternative to the other charge. rhe court found no evidence to implicate the respondent with·t?e 9ffenc~(s). This is an appeal against that finding • . ,. -The ,fac~s of J,he case are largely nqt disputed. The responderit . . was employed by Clrgello Business Co.(T) Ltd as secu;ity guard, to guard the premises of the said Company. In the night of 4/6/94 thieves broke the store. of the said canpa.hy stole a generator valued at, shs 1.400.000:00. · The respon:l.ent was on duty that,night. With him in the premises were Giron Alex (PW.II) and Idd A.Uy(PW,III). Nooo of them heard or saw anything suspicious that night. · Sometimes at night the respondent was awakened by qu. noises. He went around the pr6II!;ises but found nothing suspicious. ~ ·· ,, ••• /2

. 2: : • • •• . ··' ·"' ,.... . .. · He however move/&' fa:ic.machine:that·.was too near a win:1~ to a much ' .. • . :,, -l it more safer place~·: .. in the mbrnilig he' d:Lsconv-ered a br-eakage ;f the . - . ' " ,. ' . ':.. ,' ~ . . stores door;; ·. A generator was missing. The matter was reported to ,·, .. ; . . ' . Fdwin Maleko(PW.I) v1ho took it up with the police.; D/Cpl.,Mohamrned (PW. IV) mounted a~ ·:in~iigation that led to the apprehension of the respondent.

• • • • 1 ~ .. •: '. ~ •~ ~ ll • . There is not a scintilla of evidence to suggest that the respo- ndent could have been the thief. The case was decided in the light of the alternative count.••· Havi 1 ~g-.0onsidered the evidence the court found on this cotint that as there was again no evi.dence to the effect . that the respondent knew or had reaion to know that some -~one was a:'bout . to steal he coUld not therefore be ekpected to prevent the· oomnission of the offe'ilce. These. wrds are the constituents of mens rea i::iecessary o founi an offence under sec.tion 383, of the Penal Co:ie. In Mr-s Lyimoj ,. .., I ... ~ •",/:.,\ • . ': ' Principal State Atto:i:-ney 1 s written:'.subnission it is suggested that the respondent must have, been negligent in the performance of hLs duties. It is not necessary to decide on the point becaμse negligence is not a constitute:q.t of the offence the respondent was charged with. On the evidence and the law the respondntts acquitte.J. is sound.· Gens· ently'the appeal is clisnissed •.. ·, :' / ,_ '-... ~ I...A_ . .._,u /- (w. N. B. Kapaya) . PRM (EKT • .nJRISDICTION) 18/8/98. livered· in court this 18th day of August, 1998 in the p:-esence of Mr. Masara State Attorney and in the absence of the respondent AT ARUSHA 18th August, 1998. WNBK/el. '·--~~~- (W • N• B.Kapaya< - PRM (ElCT.JURISDICTICN) 1s/a/9s. 0