Yusufu Selemani Saidi & Another vs Republic (Criminal Appeal No 28 of 1989) [1991] TZHC 2670 (22 August 1991)

MAINl .. 1 J: . IN THE HIGI-I COUrtT OF Tl1NZl.i\JIA .T DODOMA (DC) CRI11Ii:Ji,L A.t?PEAL N0,28 OF 1989 I Ct:.:·_·. "; 2 3 Si:. 1-- f u ~ l _fi; . : ,,,. * i)f"l\ 0 SAJ,:• -,,

• --~ . F.i:WH THE DECISION Oit., THE DISTRICT COURT OF DODOMA AT DODO}1A IN CRIM!Nl.L CJ:..SE WO, 192 OF 1988 • BEFORE: 11.,A. RUTECi·Iu.aA, Esq., DISTRICT MAGISTIL;.TE . I~ YUSUFU SELE.uu s •• IDI) ) 2 ." JOHN NGALYA . ) • • • •• •,, •-•,,. APPELLANTS VERSUS THE R.2PlJ13LIC •• , •,, •• • • •• ~ •• • ••• , • •••• • R:831.JONDENT JUDGMENT The two ap1/ellants, Yusufu Selemani Saidi and John Ngalya were jointly convicted by the district court at Dodoma of stealing by ·public servant. They were each sentenced to imprisonnent for f.ive ' . yea:rs • The appeals which are _9onsolidated 1 a.re against, tl;la -yonvietion. . . ... The appellants were watcrunen employed by the Water Departnent and they were stationed at Dodona. There were other watchm.e·n in the department and all bf. them, including the appellants, worked · on shifts. Evidence established that several motor vehiales were parked at ttte yard where the watchraen were stationed. One of .the notor vehicles was. a Leyland with registration nuubers STG 7661. It is not. shown in the ' evid,mce for how long the motor vehicle h been parked there, but there was undisputed,evid ence that it wrJ..S out of order. The appellm1ts had been on duty from 11 to 16 April 1988, . On 18 Ap'ril 1988, a r.1echnnic PW.2 Ch2.rles lesa was checking the mo'tor vehicle when he found out that sone pa.rts had. be.;m rer.1oved from the no tor vehicle. They wGre one a.xel Wld a getllt reduction, The witness s2.id th&t he hr.<l hruided over the notor vehicle 2nd otner vehiles to the appellants who were on duty on 16· April 1·9ae. The first accused did not iive evidence, .:md. the second accused grwe an account of how he was arrested at his \ house niter the theft was discovered, It seens cle8.I' th~t the lle 6 e& theft was coonitted while the ootor vehicle was p2.rked at the prenises wherG the appellants were on duty. The apell2nts were ~rrestod :.md cha.reed because they were on duty when the theft wn,s discovered, But it is not known fron the evidence as to when exactly tho theft took-place, ••• /2 /

It r.ru.st also be poited out that tne parts were fittcu in the motorvehicle, and whoever stole th-:?:: h..:1 to ::is'.J.antlc s0r.1e parts in order to r-Jr.1ove the axle end the 6 ear reduction fro □ th~ ootorvehicle. The learned district oagistrate convictod the appellnnts because they were on duty d1:,1Xing the period the parts were stolen. But there was no evidence which c(l)nclusivoly proved that the parts were in tfie veli.icle at the ti1;1e when the a1-pellnnts wore on iuty, The evidence ·criven ty the ·nechanic, PW.2 Chnrlcs Ma,.3esa, . ' thd he ho.:nded over the ootorvehicles 2,t the· prer.tlsos to the appellants does not prove that c11l the i)arts in the r.10torv0hicle were intact• The position. is therefore this. "The··2. 1 Jpelltmts were on duty i:,--Uar3.ing the pr2raises in which were :x=i.rked several :::iotorvehiclcs • There were other watchoon too,,including PW.1 Athw:ian Onari nnd PW.3 Ti to Jvfangwola who were also on duty. uuxing the rle,v::int ·dates bu_t on .. differ(mt shifts, The theft was discovered ·on 1-5 .. .Lpril 1988. by_ one LaDeck who was 2-lso a watchr,mn but he u.id not testif:y in. this ,.case, l . , . A thoob' said that he'· wt'..s · 6n. duty on. 15 April 1988 when. L11i11eck tolc1 hitl J. tht there was theft ·of an axel. So Laneck wust have been on duty to~ ; l:· wh.en the·' theft w2,s cor.1nit.t,j,~ . ri:1ho c.):· :11 :"nts :i ... -:r? -:->n d.uty tho.t period but on different shifts. In the cirouastanms tho' theft .coulcl have been cor.mtted by anrone, .. including s000 of -tho watdhnen, or 0ven. other .. ..,.i· er:iploye8s ~ · .I agreJ with ::..· w NJ:i.U1 0 ui--u, lcarnocl stat i;torney that the prosocut,ion e:7_is.Gp.cc 'did no. prove the cha.rr:;o [1[;8-inst' the appellants.o The.appeal is allow0d, The conviction is quashed and the sentence is set aside. The appeliants should 'be .:released from custody forthwith . unless.they are otherwise le..wfuily held9 W,J. DODOMA 22 Au 0 1.1st · 1991 Mr 0 Ndunguru, State Attorney, for the Repubbic 0 Appellants - .abs~nt. '; \ ... : ' t' ; . /