IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

CRIMINAL APPEAL NO. 45 OF 2003

(ORIGINATING FROM TEMEKE ATTEMEKE DISTRICT COURT CRIMINAL CASE NO. 313 OF 1999)
_1. _ADAM _UMBE
	
2. MOHAMEDI S/O ATHUMANI 

VERSUS
DIRECTOR OF PUBLIC PROSECUTION . .. RESPONDENT

JUDGMENT

The appellants, Adam Umbe and Mohamed Athumani @ Mazengo were convicted of the offences of conspiracy to commit an offence and breaking into a building and committing an offence, contrary to SECTIONS 384 and 296 (1) of the Penal Code, respectively. The particulars were that on material date, 5/7/99, at about 6.30 a.m at TAZARA area, Temeke District, Dar es Salaam, they broke into the godown of M/S ZAHRAN ENTERPRISES and stole a variety of goods with an estimated value of shs. 19,462,000/=.
At the trial, five prosecution witnesses testified. The first appellant testified on his own behalf and had no witnesses to call. The second appellant refused to testify; he kept quiet.

Dissatisfied with the trial courts decision, the appellants appealed against both the convictions and the sentences.   The sentences of 9 months imprisonment for the first count and 7 years imprisonment for the second count imposed on each of the appellants were to run concurrently. They were also condemned to refund to the complainant the value of the stolen goods; shs. 19,462,000/=. They filed four grounds of appeal. Grounds one to three contained complaints that the trial court convicted them without sufficient evidence.    Ground four complained that the convictions were based on the weakness of the defence.  For the purposes of the judgment grounds one to three were considered together as ground One and ground four became ground Two.

At the appeal, the appellants proceeded in person as they had no legal representation. The respondent was represented by Ms Mkwizu learned State Attorney. The appellants submissions were basically a repeat of the contents of the Memorandum of Appeal. For the respondents  the learned State Attorney stated, that she supported the convictions because the testimony on record proved th   harges against the appellants beyond all reasonable doubt. She relied on the Cautioned Statement of the first appellant in which he had admitted involvement in the incident, told the police that he knew where the stolen goods were taken to and actually led the police to the venue where the goods were found. She submitted that the first appellant did not object to the admission of the Caution Statement when tendered. For the second appellant she stated that there was ample evidence on record that he was employed by the complainant and that he was on duty at the material time and that he disappeared after the incident until he was arrested several days later. She further stated that he even failed to explain reasons for his disappearance at the trial. It was Ms Mkwizu's further submission that the appellants defence, if any, did not raise any doubt in the prosecution testimony. She concluded that it was proper for the trial Court to attach the weight that it did on the prosecution evidence and accordingly convicted them.

The law on the relevance of information received from an accused person in police custody is provided under SECTION 31 LAW OF EVIDENCE ACT 1967, which states:-

The clear language of the law is in support of the admission and the weight attached to the appellants' caution statements as alluded to before. On the second appellant's statement which implicated the first appellant; a co-accused the law permits such evidence so long as the same is corroborated pursuant to the provisions of SECTION 33 (1) and (2) of the Law of Evidence Act. It was therefore proper to rely on the statement of the second appellant which named the first appellant as one of those present at the godown during the incident. This information was corroborated by the first appellant himself.
I think I have sufficiently demonstrated on the foregoing that there was adequate evidence on record to convict the two appellants. I accordingly uphold the convictions.

It is on the basis of the foregoing that I uphold the convictions and sentences. Accordingly the appeal is dismissed except for the variation made on the amount of money to be refunded to the complainant.

For the avoidance of doubt, let me place it on record that the second appellant was released from prison on a Presidential Pardon due to ill health and old age. Notwithstanding that he will continue his stay out of prison after this judgment; his conviction and sentence are not affected.

It is so ordered.

				(K.K. Oriyo)

				29/4/2005