Appellant vs 1st Accused (High Court Criminal Appeal No. 21 of 1989) [1990] TZHC 461 (16 September 1990)

IN ·.rHE HIGH com.1.T OF T1,iiJZA1'TIA AT 1\R~~ APPELLATE JlIBISDICTION HIGH COlTRT CRIHINAL J;;...: vlAL NO. 21 OF 1989 ORIGilif.."i.L CRil1INAL C1lSE NO. 153/1988 OF I1:HE .JL:i'rRICT COURT OF .. Bi1 :AT1 DISTRICT 1\T BJ\B,'..TI Before P.E. ML/iY &q :'Soniolt' /District )11agistrate JUDGE M E"N T On 21/8/1990 1 heard this ·appeal.· 1 allowed it. l quashed the conviction . and set aside the sentence a·nd order of compensation that wer~ passed on the appellant by the tial subordinate court. l ·ordered the a,ppellant to b2 released from prison foril::."\t.#h -; 1 unless· further cletained thereat for another .._ r lawful cu3se. l rGserved reasons for ny · decision. 1 now give those reasons. The· appellant with another (1st accused)• were jointly charged at Baba ti . . District Court ith theft c/s 265 of th, Panal Code, Cap. 16. The appellant was convicted ··of the charce ··and was sentenced to five (5) years imprisonm2nt under ·the Minimum SentencfJ-JAct No. 1/1972. H.: was further ordered ·t r;a.k;e good the loss or:·i5 tyres the subject of the theft .,hose total value is 106,500/= tp property of Bndakiso Ujaraaa Village. The 1st accused ,as acqu- itted iof the crui.1;-ge and tt_as set fre. The appe11/i~~-s appalng!:~'1st conviction, sentence and the order for compensation'.~ '.. · ,, _. ........ • • • ..1. The appellaht appea:fed ip irsori at the h0a:r;-ing of his appeal. However, • '<• h••••• he did not say anything raoro than what he 3rgued in his grounds of appeal contained in his memorandum of appeal. ln his ,.:,--rounJs of appcal 9 the appellant ref erred to th8 fact that he i"ras one among nlnG other committee members of End.akiso village Oouncil who were handling the singl key to tha store in which the tyresalleged t_o have been stolen were kept. He also referred to the fa.ct that the Village (~hf;,_irmrui 11as in custody of the du)lica.te key to the store lock. Also there was a store clerk who ·.1o!l:'ked in the said store. Tho app$1lant charged that all these pensons were accomplices whose evidence required corroboration. Also tha same as store building was being used by CCI-f their office in that vill8.Ge. Tho appellant charged that, under these circumstances, in the absence of direct evidence by an WJft witness, it ~as difficult to pin-point any of the several persons that had access to the store in question to have stolen the tyres in this case • ••••••••••••• /2 ·"

2 Mr. Mwidunga, learned State Attorney, conceded to the appeal. He therefore .lid not sup_liort the c0nvicti0n, sentence and the orJer of compensation that were imposed on the appellant by the trial subordinate court. Mr .• Mwidunda submitted that, the 1st accused, who was personally resposible for the safe pustody of the store materials in the store houae in question, handed over everythinJ ill that store- to the appellant on 1/2/1988.· The said handing over was done in writing, and both the appellant and ls~.accused signed a handing over certificate Exhibit D1. ln that handing over certificate it is not recorded that the appellant was handed over any tyre •. MQreover, from the etJidence of P.w.l, it is shown that several committee n:,t;1bers handled th@ single key to th~ Store in question. Any of those· committee members could have stolen the said tyres from the Store. Also, 'there was a steir0:clerk who could have stolen those tes from that store. Then Mr. Mwidunda submitted that the pros2cution did not give any explanation on the duplicate key to the store. i-lh.o kept that duplicate key? Whoever kept the duplicate key to the store could have as well stolen the said tyres. All these importar+t issues were not resolved, and the same create a lot of doubts which ought to be accorded to the appellant's favour in;this case. l fully upheld Mr. Mwidunda's submission. The chrge was not proved on the appellant b~yond reasonable doubt as required by crici:aal law. lt is on the forego_ing raasons that 1 a·llowed this appeal. 11.ppeal allowed. MDN/rj. 1.JUDGE 16/9/90