Republic vs John Mathayo and Another (HC Criminal Appeal No. 32 of 1984) [1991] TZHC 2808 (28 August 1991)

F77" IN THE HIGH COURT OF TANZANIA AT fUSHA. •. APPELLATE JURISDICTION HIGH COURT c I?1INAL.APPAL NO.32 OF 1984 C/f Cr, App.: No. 4/84 T (original Criminal Case No. 126. of. 1983 of the District Court at Nbulu. . ..' Before AL. Mwakalobo Esq,Dstrict Nagistrate, JOHN sf0 NATHAYO & vSUs - THE R1PUBLIC .........,..,......-..,,,.......,.......RESP0NDJT JQDGENEN LN. MtJNtJQ, J.. . . Criminal Appealà nos, 32 and 44 of 1984 are against the conviotipI?., and sentence in-Mbulu District Court criminal eas no.126 of 1983. In the sai case five accused persons namely:- . . . Accused n.1 Francis .Tsaxara; . Accused no2 Daniel Matayo; Accused no.3 Gahida Natayo; Accused no.4 Iock Nachan;c: .d Accused no,5 John Natayao; - were jointly charged with office breaking and stealing c/s 296 of the penal code in that on the 14/5/1983 at nigtat Dongobesh Primary School in Nbulu District the accused persons broke into the office of Dongobesh. Primary School therein stealing books valued at 6hsi l l 2,4101= the perty of Dongobesh' Primary School,. Criminal Appeal h04 44 of 184 is time barred in that it was lodge lo days after the period of appeal had expired 4 It is accordin1y struck off, :'1Jth regards Criminal Appeal no. 32 of 1984, the complainant P. .5 Jeromini Nero stated that thieves burgled mt the office of the head teacher at Dongobesh k Primary School on Lnt of the 14/511983. The thieves stole some 150 excercise and text books valued some shs. 2,4lO/. At about the same time the accused persons were found selling oxcircice books and having text books which were among the, books stolen from the material primary shod. The accused were suspected, arrested and charged with the present offence. The trial court acquitted accused no.4 for want of sufficient evidence against him. Accused no.1 2 2,3 and 5 were convicted of the offence charged. /0

A.cueed no2 and 3 were sentenced to ten trokef the cane owing to their juvenile ages. Accused no45is appealingagaint the conviction and sentence, Mr. Mwaimu. ., learned State AttorTley did not support the convIction on the ground that the evidence on record did not establish that there was oftce breaking at the m.teria]. primary schoó1 He noted. also that the ezercise hooks the accused sold were not secifidafly indentiied as stolen property P,4I, P.420 P,W.3 and P.W4 staedthat oy bought exercise books from • the appeflait it..nowitnesses were called to •jdentfy the said books as the sole property of the Minis ry of Education for exc1uaIie use in ools. J Another. doubt .in this caea i that thete is no eviderce to show that the office • of theitead teacher was broken into on the alleged eight because•no brë8king report was made to the police. - •• • Under the circumstances the scanty evidence on record is not suZicient to sustain a convictIon. •• •• -. • - ' S •- •.• S S Accordingly the appeal is allowed. The appellant was granted bail pending. appeal on the 1/6/1984 by DtSouza, Acting Judge. It is So Ordered. E.N. MUNUO JUE ?8/8/1991 At Arusha 1hxs 23/3/1991 Appellant: absent Respondent:—Mra. Mary Lyimo, State Att ey. • ;/'_'• 7 J.N.MUNUO 28/8/1991, N/RI& 5' •