Romaiyan Ndure vs Republic (High Court Criminal Appeal No. 69 of 1990) [1990] TZHC 349 (28 December 1990)

IN THE HIGH COURT OF TANZAMIA ArrELLi'.TE JUlUSDIC~ON HIGH COUR'I' CRI!UNAL ;iTF.GAL NO,. 9:i OF 1990 ORIGINAL CRIMINAL CLSJ£ NO, 288 OF 1989 OF IJ.'HE DISTRICT COUHT OF MOSHI. DISTRICT AT MOSHI ROMAIY.AN . litDURE. • •• • • • •• ~ ... • • • .. • , •• • •••••• • •• .- •.•• , •••• • • .AP!'L.ANT THE B.ErUBLIC ., . ·.... . MUNU0 1 J. VERSUS •· ··························••*••••1••······ RJ1SPONDENT JUDGEMENT p ___ ..._.. This is an appa.l from the J\bshi Dietri.c1; :i; ~ ~ . . . ' . ~ .. No •. 288 iii ~ J:..:u. ~~ o .ao-ow.iod •n., - . .AslGJUWA- Bo •. l ~~ .J,/JJjJJ1,WJ, )1d .. 2 Mi.istap~~ Ch!me. .. - ~ Selema.ni k9 R • 0 • 0 ,· A,cio.used No-4 ?.t.i.sta.pha Mropo A10u~~ No an1 uro wo. Jointly ohargod :'mth storo broa.king and tvft o/s 296 (l) and 2&. of tho ponal ood.-0:,1 It _ is a.llogod that on tho ·a/9 July 1989 a.t. Ei.ZI.. unknown timo e.t tho Tanzania. Coffoe Ma:-ltoting Boa.rd (TOMB) 'buzi wit.bin tho ;&Qhi Mu.ni.o.ipa.li-ty ~ Di&'bict in T(1 amanja.ro Ron tho rive accused watchmen broke int. ~he store of _tho 'roMl3 thercl.n stea.lirig spa.re parts valued at shs. 1,739.1532.30 the property of tho . . .· ' .... . ; ~ :, •said Tanzania Coffee Marketing Board. Tho trial court convicted tho five co-accused of the offonpe oha.rged thereby sentencing each of thorn to five years imprisonm'ent. The accused ·1rnro also ordered to pay shs. 1,-739,532/30 compensation to the:ir employer, the Tanzania Coffee Marketing Board, tho value of tho stolen spares. Slis. 16 1 000/::. .fo.ttn,d in the house of acouseq, ' . . ' ~ no,2 when his house, was searahed uns also forfeited and released to the 'I'anzania Coffee Marketing Bonrd as _part of the compensation. Aggrieved by the decision of tho trial court the 5th accused Romaiyan Nclure is app0aling against the, c9nviction, sentence and compensation ardor. Accused ••• /2· ,.,·,.

• 2 ·Accused No. 1,2,3, and 4 did not app0al • . The store keeper at the Tanzania Coff co .Marketing Board Workshop at Bomambuzi in the !'Joshi Hutucipali ty. deposed th8.t on the 8. 7 .89, a Saturday, she locked th~- store at 1.00 p.m. and returned the stor_o keys to the cashier. ..:ihc obs"rved that the tl1c store has fo1.ir padlocks: she has the keys for three of the padlocks while the work~hop manager is the custodian· of the keys of . ·the· f9urth ·:·Pa,~qock. Both the mwagcr and the said n.r .3 hrwe to jointly open their rcspecti Ve padloc·ks to gain access into tho- store. It is the testimony of rw .3 that when sho reported. on duty in the mornin-g, on F.'.lornlay the 10. 7 .89·, so ODen · she founc.l tl10 manager had opened his padlock she proceeded to: ner three padloclcs. The key would not turn in the first lock but after shaking it, it finally opened. rw ,3 entered the store a.11.d found th0 spares vrhich were in crates missing. She reportou tho matter to lLr supervisor, rv .5 Stanley Waranchasa who in turn informed the ma.11acor who contacted the police. The five accused p0rsons·who rnre on duty durin5 the. tt::rlril".l time were susrocted, arrested nnd chn.rged with ·tho theft of the· missing spares. In his memorandum of appeal the arpellant · blamed tho cashier, the stor0 kecp0rs and the worksh0ri mnnp,g0r r:ho had access to th-3 keys for tho theft• He said that hnd. tho trial magistrate carefully considered the ovicl011co adduced at tho trial ho 1,10uld not have convicted him • . . Hrs. Sumari ~ l0a.rncd Sto.te Attorney did not suprort tho conviction on ~ho gr_"luml that the evidence on record docs not irr·osistbly point - -~he gut of the appellant becc1use tho custodial1 of -tho keys could . '" .. e .. implicatod in tho theft. The issue is whether the circumstantial evidence on record · irresistbly and conclusiv;ly points·,·to th..) guilt of tho appellant. The_ rop).;y· tc the said issuu is noco:civo. The possibility of other persons_ sealinc th1.., heavy spares clurinc workinc hours by usine th0 130;::rd's heavy ~uty vehicles cru.1not be ruled oU:t. It is also possible t;u::.t some dishonest watchrnon conspired with tltl·cvos to loot • · master th,e spares over the weekend by usine; clupiicatc or .· keys. Howmr0r 1 r' 'owinr; to tho fact that the watchmen operated 011 shifts and neither shift noticed the tampered with pcllock before taking ·over guard duty, it· ·j_s difficult to identify tho sltlft which cc,rnmi tt0d t_he store breakine; and ·-theft. The possibility •••••• /3

·-J ~ 3 • The pc\ssibili ty of a conspiracy between tho two shifts could also be there. For those reasons the c0urt finds that the. evidence on record docs not irresistbly point to the guilt of the appellant. Undc:c the circumstances the aproal is allowed. The appellant, Romaiym.i Nclure to be set at li borty forthwith unless otherwise held for other lawful cause. It is so ordered. Dated this 28.12.1990 Appcallanti Absent. E.N. MUNU0 1 JUDGE. 28.12.1990 Republic; Ur. Kimomogoro, Stat c Attorney, fillIM/JJr.i E. N. MUNUO, JUDGE. 28.12.1990. '.I I