Aletas Matajiri vs Republic (High Court Criminal Appeal No. 179 of 1990) [1991] TZHC 2401 (7 August 1991)

IN THE HIGH OOURT OF TAL"\llANIA · AT CHUNYA APPELLA'l;E JURISDICTION HIGH OOURT CRIMINAL APPEAL NO. 17g_ OF 1990 (ORIGTIAL CRIMINAL CASE NO. 33 OF 1990 OF THE DISTRICT O'.JURT OF CHUNYA DISTRICT ,AT CHUNYA). BEFORB Rukandiza · Es9, District Ms;gistrate Chunya. NO: A. 3973 ·oo:tt ALETAS MATAJIRI VERSUS . ' . . ' ' • • • • JiPPELLliliT THE REPUBLIC ·• • • ·• • • • • • • • · • ! • j. i · •• RESPONDENT JUDGE11ENT J13HOTE -PRM(E,{) The appellant No A. 3973 <l'.L Aletas Ma.tajiri was convicted by the district court of ·Chunya (Ruka.nd.iza DM) of on 1 e count of desertion o/a 588 (a) (( l . . . . . . of the pr!°so1:1 Act lfo '34/67 _ and anotper COUl\t of .being accessory after £aot c/s 387. and 388 of the Penl Cbda and ·waf\ senteced to 6 months and three . •. . . . . . .. ·.· y-=ar:s-imprinment" respectiely~ The. sentet1ces were ordered to- run ~tJ:. The· appellant is appe_aling agnst cmviction and sentence. The evidence adduced at the trial.- was sile and·· straight forward and oan be stated: On. 23/ii<f.• a farmer of Mamba. village one Yohana Mnyema· ·(PW1) me,t the appellt and another.- 136th of tnem w11. 'f_e~ in prison forms allegedly_ informed th latter :that ~hey were on duty ··and ·t,1at tl:iey_,were looking for a.·· gun ~hioh was used to -.commit the off-ence of :Rq bbery · by twq ·convicts who are ' . .. ~ . ~ . . . known as Samson Shija .and aul Samwel. The. appell'ant had_ a map in which it is alleged tria:t the gun was h.idd(jn:· \ut t_ey · a.sed, BW1 not to divulge· 'bhe . . . . . information. However nothing was 'Wl.yered from the sc.ene. After ·this PW1 ' . informed the village secretary one Mkwnbo Phi die (PW2). On the_ same day it is alleged that_ t~~- a.:p.pellant and his friend went to . ... .... the CCM office where t.he.v introduced. themselv:es to PW2 and signed th viaitcra . . ' book (Exh-.P1) . Omari Sakindu who is of the· a.nk o£ Inspector at Ukoa ·prison Dar e·s Sal testified at the trial that :the n.p_-pellant was employed. by Ukonsa. prison with the rank of CPL. He claimed tt,at on 2/3/90 the appellant ·was grro1ted. 80 days _l,eave which wa·s to end on· 21 /5/9":. He said that he was later informed that the appellant vias i.n Chunya in connection ,with a crimina.1, charge. I \ l \

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• 2 As correctly observed by Miss Mwaiteleke, learned State Attorney · the conviction of the appellant on the first count of desertion c/s 88 (a)(6J of the prison Act No 34/67 was· unfounded because •/;l,S rightly pointed by Inspector Omari Skinq.u (PW3) of Ulronga prison the appellant was on leave. As regards to the 2nd count of. being acces·sory after the fact to the offenc<1 of Robbery· c/s 387 and 388 of the Pertiil"U5cle··the allegation was that the apJ?ellant lmo-wing· that ·-Sso·- -·ja ?Jld Sa.mwei Paul were convicts serving . ' . sentence of e_ig,ht. (.8} years impxisonment each at Ukonga Dar es Salaam for . .. . . . . ·. the offence of Robbery with violence c/s 285 - 286 of the Penal Code in criminal oase No ·RM 71/87 did jo~n and together try to assist the said , • .... convicts .in Mspo•sfng of some money arid fire arm allegedly hidden by the said convicts at Ma.lil.ba B village. , ... I have gone ·through the entire record but sadly none of the witnesses made any attempt to say that he. lmew anything about criminal case No. 71/87 in . wnich Samson Shija· and· Samwel P.aul were each serving Syears imprisonment at Ukonga. for the offence of Robbery with violence c/s 285 a.pd 286 of the Pnal Code. And e'ven if for the sake. of argument it is accepted tht there were such eonvicts at Ukonga one would ·wol;l.dei'.-bow' the appellruit would have . . ·. _ . .- . assisted in the matter by dispo.sing:of. some ooriey and fire arm when they had already ben convfcted., : ·,·. . After.·due and, r· hope --areful considera.tio I am of tl:1-e view that the prosecution-evidence was not_ very clear and 1hat th case against the appellan+ was not proved beyond· reasoable doubt_.··. In Denning IJ (as he than was) had this to say in Bater v Bater (1950) 2 ·AL ·:EFCut' page 459. "In criminal cases the charge mus1; __ be ,:Proved beyond ras.onable doubt but there may be degrees of proof.within that standard. Many 'great Judges ha.ve sa+}'l- ~at. in.·p:roportion as the ~r:ID:e is enorIJX)us, so ought the prof to be c lea.r. 11 • , After due consideration I ha.ve do+ded·rot, to regard this. verdict as . . .... safe_. In the e:vent the appeal is ll_o.\fed, jl.1. -c..onviction is quashed and the sentenc,e is set aside,. I order that. the. a?pellant bo::. set at l.iberty forth-wit other lmown and lawful c~uses. {) 1 (1 \ • • Mshote ~ PRIWG]P AL RJESIDENT I1AGISTR1:..TE ' . . . l I .j . •."t (E.J) \ I \ \ '· \ ....