Joseph John Massawe vs Republic (High Court Criminal Appeal No. 201 of 1990) [1990] TZHC 350 (28 December 1990)

MUNU0 1 J • . ; IN THE HIGH COURT OF TANZANIA AT ARUSHA. APPELLATE JURISDICTION HIGH CCURT CRIMINAL APPEAL NO. 201 OF 1990 ORIGINAL CRIMINAL CilSE NO. ·261 OF 1989 OF _THE DISTRICT COURT CF MOSHI DISTRICT iT· MOSHI BEFCRE: B.P. MTUNGI, Esq, RESIDYNT MAGISTRATE. JOSF.PH JOHN MAS.fl.WE •••••••••••• APPELLANT Versus THE REPUBLIC ...... ~ .·. . RESPCNDENT. J U D G M E N T This is an appeal fro Criminal Case No. 261 0¥ 1990 in the C~~~{ of Reident·Magistrate t Moshi in which the accused Joseph. John ... Massa-we "was chr.1rge·d v-Jith ·theft c/s 26,5 of the penal code. It is allged that on.the 16/5/1990 at abou-09.30.hors at the M.n.c. Shop within the. Moshi Municiality and Disirict in Kilimanjaro Region the accused stole one bicyole make Chang Zheng, Frame No. 42561 valued ' . at· shs. 30,00·0/i::: the· ;pr·operty of on-e. Hock Aug.ustinoo The trial court conv·icted the accused :of the theft charged the_reby sentencing him to four years impr'isonment. The accuse_d is .. ppealing _against the '', . .· conviction and sentence Rock Augustirio, the/complainant d<=:pos.eri 13:s PWl t·o· th effect .. ! • that hE> saw .tile acc.usd stE>al a_nr :ride ,off. on his bjfcycle- whi-~h he

• .. had parked outs id~· the M. D~ C. Shop• at the> Mos hi Municipality. · Later the complainant .t'raced the accused and .the stolen bicycle at the·· Dar-es-Salaam StI'·Jt ·ih Moshi b·ut the accused would not relea·se it . . .. ,' : .. . until the c on.p1airiaht pici him shs. ,-3, 000/=.. Thereafter the complainant had again .. t·o pa;/ shs. -50'0/= to. re-poSSE>SS th!;' bicycle.'s accessories so he wet t'o ·report ;t·he rriatter to ,the olice therupo~ PW4 Dt/St . . . ,' Wilfred and two o_the.r askar.jt,s set .a a·ecoy t'o·tran th_E> ccuer\ When the accused was receiving.-thE> ·shs. · 500/= 1ecoy money he '·'"IS ,;;i,-,,.;E>te, and charged with the present offence. not produced in court as·an exp.ibit.· . ' . The dee oy money was however . . . ~ ' . In l;ii"s sworn· a·fence th.fl accused denied the theft. He said that he was ~~~ested while 1 selling .some bicycl spars to the coplainant. He called DW 1 Godfrey John to cqrrobprate his defence. DW l stated . . ~ . . • .. • - ~ ~ • •• ~ •• 0 .••• · ••• /2 .•••• \ \

'i ' ·2 ..... that he did not know ·where the accused· got the bicycle spares from. In his memorandum of ap:peal, the appellant denied any involvement in the theft of the bicycle 'in- .q.u.e.s.tion. He wondered why the complainant di did not raise an alarm whP.n he saw him stealing the bicycle outside the M.D,O. Shop in Moshi Municipality. The appellant also wondered i~hy the shs. 500/= decoy money· was· not tendE'red in court as an exh_ibit .• Mr. Kimomogoro, learned- St.ate .~ttorney did not support the con- viction. He asso·ciated himself wi,th grounds 5, 6 and 8 of the appeal stating th.:it ~f the acc·use<l real.ly stole the bicycle the complainant would have raised an alarm t.o have, the _people arre.st the suspt>ct".· ' . Th.f state ,~tt orney also expressed the vie1;J that t.he $hs. 500/= had to be tendered in court as an exhibit. The iss'ue is .;hether the ::;uilt £ the accuser'! 1-•as nrove"l bevonA all reasonable doubt The accused···nd his• defence witness crtlmit that the former was arrE·sted while selling Bicycle spare parts to the complainant. The admission CQroborates the complainant's evidence that the accused withheld the bicyc1e accessories and of'fered them. f.or sale to the : c omp1ainant for: shs. 500/=. . It was then t·hat the complainant enlisted the assistance of _PW4 Dt/Sg: Wilfred who caught the accused red handed with the bicycle accessories of the complainant'. The omission to tender the shs. 500/0 de-coy money for· pur'chasing. the bicycle spares was not a fatal irre(jularity in the circumstances • . The complainant '-s failure to raise an alarm would appear knaive ~- • J • • but he did trace the Accuspj and the stolen b'icyi.le which he accused only released upon.the cmplainant paying him shs • .3,000/= allegedly ,because the ccused hrt pleiged the said bicycle to a third party· for that sum. The ~ccused's act of removing And taking the complainant's bicycle's from the _M.D.C. ~hop without the authority of the owner,

• was, in simple parlance, straling. There is no way the accuse~ can avoid liability~ In the circumstances th; guilt of the accusd was established beyond ·all reasonable noubi at the trial. ri:'he conviction is therefore u,held. The sentence of 4 years imprisonment would annegr exces8iVe ......... ponsidering th9t the bi6Jcle·was recov~~ed and that the ,gccused wss a first offender A suspended sen'tence would have met the justice of the case. The sentencP o~ 4 years imprisonment is here~y quashed and set aside and su,Jstit·uted ·herewith ·a s·~nt'ence of· 3 years suspended h

.... 3 aoa . being. sentenee esulting in the dppellant & set at liberty forthwith unless otherwise held for other lawful cause. sve for the variAtion of the sentence, the appeal Against is dismissed. It is so Ordrei. E.N. MUNUO, JUDGE; 28/12/1990. At 11rusha this 28/ 12/1990 ,1\ppellant: fibsetJ.t · Republic: Mr. Kimomogoro, State Attorney ENM/vm ~7. ' E.N. MUNU0 1 JUDGE. 28/12/1990.