Mashauri S/O Revelian vs The Republic (HC Criminal Appeal No.13 of 1991) [1991] TZHC 2217 (13 September 1991)

/ APPELLt.TE JURISDICTION (Tabora Registry) (HC) CRIJ.'.:IN/:.L APPEAL NO: 13 OF 1991 ORIGilT.-\L cnn:IH/i.L CJ.SE no: 29 OF 1990 ; OF TJ{, Disrrnc·r COUR'.C OF K.AHf:.H!\ DIST::1IC'.r AT..J~\r\11.r.,!. Before: I.o·.K. HO'.~~., Esq., DISTRICT !JiAGLST:F:..;:.TE HM3Hf:,.UJ1I S/0 R1:1:VE:LL~.H ••••••••••••••••••••• APT:'ELLAFT (Original Accused) Versus 'r1II: J L,: :.?UPJ,IC. • • ~ ••• • •••••• • ••••••••••••••• RD.:?POJ:WiFrT (Original Prosecutor) J U D G 1'1 E N '.i: , ...... , ......... _ ....... --• ... . ........ t .• ,p, .......... •an-_ .. ....., This is an appeal lodged by the ii.ppellE:mt. who was charged with two offences before the Distr•ict Court of Kahama. In the 1st Cot.mt, the Appellant was joitly charged with artother.person with the offnce of House-breaking c/s 294(1) of the Pent1l Code, Ih the 2nd Count, tne Lppellant Has jointly charged with another peeson wit:1 the offence of stealing c/s 265 of the Penal Code~ However, in view of the time thet had elapsed since the date of the incident to the date of the recovery of the radio, the trial Magistrate convicted the Appellant and Co-Accused of the offence of receiving stolen prope:r•ty knowing the same to hbve been stolen or' unlawfully obtained c/ s 311 of the J?enal Code. The Appelln.nt and Co-Accuor:Jd were e; 0 .ch sGntenced to 3 years imprisonment. Hence, this instant appeal. I must hasten to say tho.t che conviction of the Appell[mt and Co-!lccus.cd ccmnot be allowed to stand· The i-•adio Exh •. PI was found in the phJsical possession of a person called Dalali. The Ap-r-,ellcnt admitted having ever sold a radio to one De.la.li but thn.t the r8.dio J£:xh. PI was 'nt tho one. The .lappellr:nt 's evidence wns supported by th::.t of DW2 (Co-Accused) and DW3, the Appellant's wife. It was,in ~J view, obligatory for the prosecution to prove its case beyound roasonn.blo doubt by getting one Dalali to come· ·to Court and testify as to how he he.ct come to be in possession of the radio Exh. PI which was seized from him.

2 ThG learn0cl Frincinc:l ,Sta.tu ,: _ -:tornoy, Br. Ilk.ki w:w rir:,;b. iD. not supportin conviction. On tbe foregone abae~v2tionn, I would interfere with the judgement bJ quashinc; conviction ag,.:dnst tho fppellant and Co..-o.ccusc:d, one SFcbin,::i )?otcr. The Sentence of 3 ·yl"'O imprioonmcmt ls sut nside. It in herr:b;i order-) 1 ~~ :crJ. :~ the ! __ priolL nt ·ncl Co-ro_ccus '.d be relen.8<>.d forthwith from prison unJ.er-.:.r:1 lawfuJ.1,J d,;•crdn,:;c1 for othel" cP.cUfJ8S~ .:°'..ppe2.l al1oua.1-. . . ..--·· . ' ,,,r,......, . .;,--:-.' . l.TJP.,G}~. 13/9/1991.