Kisanga, JA, delivered the following considered reasons for judgment:
G When this appeal came up for hearing, counsel for both sides addressed us and at the end of it we allowed the appeal but reserved our reasons to a later date. We now give reasons for doing so.
This was a second appeal arising from the decision of the High Court (Mrema, J) dismissing summarily the appellant's appeal against conviction by the District H Court for house breaking and the sentence of five years' imprisonment. Before us the appellant was represented by Mr Kahangwa, learned advocate, while Mr Lyimo, learned Principal State Attorney, was for the respondent Republic. Mr Lyimo did not seek to support the appellant's conviction. He shared Mr Kahangwa's view that this was not a proper case for summary rejection by the High Court. The evidence on record was such as did require re-appraisal, and that had this been done the learned judge I
could not have upheld the decision of the District Court. With respect we agree A with the concurrent views of both counsel.
Very briefly the facts of the case were that the complainant's house was broken into at night and a number of items of property were stolen from there. About three days later the appellant was found wearing a T-shirt which was adequately identified as part of the property stolen from the complainant's house. On being B asked, he immediately explained that he had bought it from his co-accused (first accused), and another co-accused (third accused) who was then present claimed that he witnessed the said transaction between the appellant and the first accused. In their defences at the trial, both the first and the third accused persons C denied any involvement in or witnessing the sale of the T-shirt in question to the appellant. However, both the first accused and the appellant who was the second accused, were convicted for the offence already mentioned; the third accused was acquitted. Again as intimated earlier, their appeals to the High Court were D summarily rejected, and while the appellant has appealed further to this Court, the first accused has not.
The complainant's neighbour (PW2) watched the incident that night through the E window in his own house and by the help of electric security lights stated that he saw and identified the first and third accused as being among the four persons who broke into the complainant's house. However, he categorically stated that he did not see the appellant there. Now the question is, if the appellant took part in the commission of the offence, why did PW2 not see and identify him? F
The appellant was found wearing the complainant's T-shirt and upon being asked he readily explained that he had bought it from first accused, and that explanation was duly supported by third accused who was present them. We are finally of the G view that that explanation could possibly be true. Indeed the first and third accused persons in their defences at the trial completely denied any involvement touching on the T-shirt in question. That, of course, could only be expected because it was in their interest to try to prevent the shift of blame to them. The H view, that the appellant's explanation could possibly be true, finds support in the appellant wearing openly the complainant's T-shirt bearing the complainant's initials RZ on it. If the appellant were the thief or a guilty purchaser or receiver, it seems to us most unlikely that he would have worn it so openly and in the locality where the complainant could reach easily. I
A We are certain that had the learned judge addressed himself to these matters he would have found that at least they did raise a reasonable doubt in his mind as to the appellant's guilt. It is for that reason that we upheld the submissions by counsel for both sides and allowed the appeal, quashing the conviction and setting aside the sentence with the order to release the appellant forthwith unless he was otherwise lawfully held in custody. B