Mapigano, Ag. J.A., Makame and Kisanga, JJ.A.: The Director of Public D Prosecutions was dissatisfied with the acquittal of the appellant John Ngindi made by the district court of Moshi on a charge of breaking into a building and committing theft therein contrary to section 296(1) of the Penal Code. On appeal to the High Court at Arusha the finding of the district court was reversed and the appellant was convicted of the offence E and consequently sent to prison for a 5 - year term. The appellant came to us on appeal against the judgment of the High Court and we heard it at Arusha in September, 1992. We then announced that the appeal would be allowed and the conviction quashed, F and we set aside the sentence and ordered the immediate discharge of the appellant from custody. We promised to give our reasons for the decision at a later date.
The evidence established that at the material time P.W.6 James Michael Shao operated a public-house in the Moshi Municipality and had several barhands in his employment such G as the appellant, P.W.1 Stephen Joseph Kandi and P.W.4 Jasper Athumani. On 25/5/89 at night when the day's business was coming to an end the appellant handed over the bar proceeds to P.W.1 and the latter locked the money into a cash-box and put the cash-box in a store inside the building and then left the premises with the key for the H cash-box. It was admitted that one set of the keys for the store and the building was in the custody of the appellant, and that it was the duty of the appellant to keep the drinks that remained over back into the store and to lock up the store and I
MAPIGANO Ag.JA, MAKAME JJA, KISANGA JJA
the building before he knocked off. It was further admitted by the appellant that he left A some of the unsold drinks at the counter, which we consider curious.
Came the following morning, and some of the drinks the appellant had left at the counter were missing. Likewise the money in the cash-box, and according to P.W.5 Paul, the B cash-box had been tampered with.
The appellant was a prime suspect but none of the stolen items was traced into his possession. P.W.4, a cook, testified very briefly that he had slept outside the public-house inside a motor vehicle and that he did not see any person coming to the C building after the closure of the business. We are of the view that P.W.4 should also have been a principal suspect in the crime. The point is that his evidence did not disclose why he stayed the night at the building, and we are surprised that he was not closely examined on that point.
The High Court found that there was no breaking anywhere in the building and that the D circumstances tied the appellant to the offence irresistibly. We have been unable to sustain these findings.
There was independent evidence from P.W.4 on which the court could properly find that there was a breaking of the store in which the cash-box was kept. In any case we think it E was essential for the Court to consider the fact that the appellant did not have exclusive access to the stolen items, which is almost always a material and critical factor in this type of cases. As indicated already, it was common ground that another set of keys to the building and the store was in the custody of another person. Accordingly, while we agree F that the grave suspicions that the appellant was the culprit or a party to the crime were not altogether unfounded, we consider that the evidence as a whole left a vestige of doubt as to his complicity.
It is for these reasons that we came to the conclusion that the conviction should be G quashed.
H Appeal allowed.