Ahmad Mussa and Others vs Republic (Criminal Appeal No. 104 of 1979; High Court Criminal Appeal No. 105 of 1979) [1982] TZHC 181 (2 December 1982)

IN ThE fIGT CTT CF TNAI'\ T APPELLATE JTJSDICTION HIGH CCURT CRHT tL IP'rL NO. 105 OF 1929 C/F CRIItI\AL k 104 103 of i979 CRICTh L CR11 ITTjL 187 OF 197 8 OF THE DISTRICT COUF" C 1 ST.JLL LISCIICT T KASLJLU Before NUTONGOPE, Ee., Eistrict Iwgistrte AHMAD YUSj\ & OTHEPJ APPELUANT versus - THEflEPU31IC.......................... P-SPONDENt 1 CHJ'RGE Breaking jnto ouldang and committing felony therin c/s 296 (1) ae Penal Code Czp. 16. J U DdI'L E N. T CHIPETA, J. The three appellants, nasly,Ahmad Y ussa, Baraka Twalibu and Theofil Msang -ula were jointly ebargeilwith four others with the oftenco o. brecking into ç' building and committing a felony theroii c/b 296 (1) of the Penal Code. T.1i6ap11ants were convicted as charged and were!each sentenced to five years i:ipriso:iment. The other four accused persons were also convicted as charged, but as they were juveniles, they were comittedtO anapproved school. The ep . ellants, whose appeals have been consolidated, now appeal to this court. The appeals of the first and second appellants have no merit. In respect of the first appellant, Ahmad Mussa, there was cogent evidence that he was seen drinking the stolenwine in the bush. The watchran (P0W.3) testified eloquently to this fact. The evidence of 1D.C. jumanne (P.W.5) corroborated p.w.3's evidence, Then there was also the confession of Iddi Saidi 1 who was the third accused at the trial. He told the trial court that it was the first appellant who told him to go through a tunnel in order to break into the R.T.C. godowii. With regard to the second appellant, Baraka Twalibu, he was seen by PW.3 in the appellant's group drinking wine in the bush. Indeed, he was one of the people who restrained the first appellant fro assaulting P.%J.3 when PW.3 had seen them in the bush. In fact it was the second appellant who offered a bottle of the stolen wine to P.W.3. Besides,

Iddi Saidi named the second appellant to have, been in first appellant's company when the said Iddi Saidi was ordered by the first appeilnt to go through the tunnel. As for the third appellant, 'rheofil Msangula, the V. evidence against him was that the culprits sold him seven bottles of wine. His eDlanction was that he was an innocent buyer.. In my view 1 his explanation was plausible .for.he made an immediate report after realising tht the wine was stolen property.. He ought, therefore, to have been acquitted. For the foregoing reasons, t.ie'appeals of the first and second appellants, näe!y AhmadMussa and Baraka Twalibu must fail and are accordingly hereby" dismissed in their entirety. The 'apl d th third appellant, Thofil Nangui is hereballo'wed. His conviction is hrebr quashed and sentence set aside. He shall be released from custody forthwith unless qt.herwjs.e iawfully-detained. JUDGEO Delivered in open court t s ?n day of December, 1982. T / . ... . . . '..