Mbonipa Wilfred vs Republic (High Court Criminal Appeal No. 30 OF 1982) [1982] TZHC 359 (21 October 1982)
Judgment
IN THE HIGH COtmT OF T11NZ.NIA
AT T !1BOR/\
APPELμtiTE JURISDICTION
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HIGH COURT CRil'JIN1\L 1\ P"S:\L NO. 30 OF 1982
OF THE DIST"RI'jT COURT OF KI(}OMA DIST"1ICT ./\T KIGOMA
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BEFOR rIIB1\ R.UKU -s,, o, SENIOR M!1G-ISTRATOE
(Original Accused)
VERSUS
T H"fE B.]PTTS1I 8 ••••••••• _o •. •' ••• • ••••. • •••••••• • t Respondent
, _t • .
(Original Prosecutor)
Cfu\ RGE: St ec1linrr by serv3nts c/s 270 and 265 of the, penr1l
code cap 16 Vol.l of the Las.
2nd Count: Store bre'1king c/s 296 (1) o..nd 265 of
the penl code cap 16 Vol.l of theLaws.
JUDGEMTINT/RR'\ SONS FOR ORDER
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Q HI PET A , J • ',".\ / _ :~ '- r,_ .
In Ki,e;om2 district court, thG :Jp:pell':mt, :.W)rtip'l Wilf.ned' and another
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who WA.S acquitted, were jointly ch"trged 1 :i th t'l1;6, of.,fencc oi:· stealing by
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fl pereon employed in the public service c/ss 270 ind. 265 of the ?en§l
)de. The gppelltmt w:..;J
,6) yenrs imprison.rn1::m4.
convicte,l <:1s ch'1r,t;:;,;d 3.nd w:1,3 sentenced to six
He then :Jppe':';lGcl to this court, through his
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advocate, rnr. R.ILP1.tel. · · /i_
The _prosecution's evi'18nce w'1s thr,'t th(~ 'Jl)_pell·mt · ::incl his co-8.ocused ..
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were at the m:Jteri:;l time ph1rnnci:3t ',.ssist·1nts. The 1ppell8.llt;was i
in-charge of the district hospi t·1l store 9 ·-::n:=; his co-accuse,d wd's :);1is
assistqnt. The door to the store hnd two locksj narnely, a mortic~ lock
and what w;1s desribed :1s '1 ni';ht l:1t ch,. The c,,p_pell'.lnt h'1d keys f 9r
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both locks whilo his '.J.ssistant h
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.d 3·· 1rny to the mortice· lock only,.
On 23/7/81, the District Mtedic-\1 Officer (P.
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!/. 2) r,eceived a
report
tha
t the store h':1.d, bcrnn broken into. He went to the store, and When''
the door wo.s opened PW. 2 88.W thJt things h"'..cl 'oeeh thrown a.bout in the
store and drugs worth Shs.61,055/50 were missinr; threfrom. A gl11ss on
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one of the windows of trw store h·:td been broken, 'J.I:i.d pieces of glass
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11.,inside as well Bs outside the storc 9 but there were more such . ··:"- P..1.cCes outside th2.11 inside _the store. The broken windo; .. it was observed 9 was so high up that no one could hrwe :3one throu1h it without a. ladder, but the wall had no marks to show th8t a l8dder w-1s used. When searched, .3.py o-f · them nothing incrimin:1ting was found on/ . Doth the appellant and his co-accused denied any knowledge of tho theft. From the broken pieces of glQss 2nd position of the window and what be obs.:n-vod ,'.Jt tht.?. scc.c.9 tb.2 12:J..rn-:;d. tri:::l m:igistro.te concluded that it must h:J.ve bGen the n1Jpell-:1nt who stole the drugs and that the breaking of the window W'1S :_1 mere red herring o· The prosecutions evidence here is purely circwnst3ntial. The question, therefore 9 is whether that eviderce irresistibly points to the guilt of the appellant. Apart from the frJ. ct tho. t the window was very high, it was not _.leged thnt it w:.1s too emall for 3 person to ,c;o through it. So, means Fa't entry through the broken ·Nindow need not necessarily have been a ladder) It could have been by other means. The second point to note is th!J.t only one lock w:is locked on the morning the theft we1s disco=.1ered. So there was as much chance for the appellant as well as his co-accused to enter throu:s~ otherwise lawfully detained. Tabora 21/10/82 ,,y . {/lil111~itcf'y B. ··n .-~PRrA; JUDGEh the door. On the· evidence, therefore, and as w3s pointed out by the learned advocate for the appellant and le:irned stnte attorney, there was great suspicion th8.t one o.f them.or both the 3.c·cused persons committed the offenc;e, but suspicionj however gr'lve, cannot be a basis for a conviction. It w.:1s for the foregoin; reasons th:it I quashed the conviction, ,, set aside. the -sentence and order of compens:J.tion Md ordered his immediate release irom custody unl