19860705 TZHC Dar es Salaam

" t?E UNITED REPUBLIC OF TANZANIA, IN THE HIGH COURT-~ OF TANZANIA . . · AT DAR ES . SALAAM, , . APPELLATE .JURISDICTION·.:-~-:""• ... .· . . ,, HIGH COURI' CRJl\lIINAL APPEAL· No·~. l M' 1'86- 0RIGINAL CRIMINAL CASE NO. 12~8-0F-1981 . ,.. .,_. OF THE DISTRICT COURT'' OF ILAL.A DISTRICT AT I(I3".JTU :,,- - Bef ere Cha;~ha, Esq., Rt:sidertt Magisjr?.te ANGE1IUS KINONDE. 0 • • • • • • , • • • -AFF~!,LANT • .• (original.Aocu.se'd) versus ., ______ THE UNITED REPUBLIC • • _._ • . • _• • . • • RESl'ONDENT (Original· 'P'itosecutor) , . ~:,; .T< <' - . Charge: Stealing by servant .c/s. ~71 an9- ~6~. o~·_l?ena,l~ ·c,,d:_e:: ·. . J. U D G E M E N T :: T.r.e ai:pell&nt, A .gelius .Kiwonde, _wa~. o,narged 'b~fW.e:•' the district crnrt at Ki-sutLt~ j•Jintly with three' .tei-sqn$:.: ·, ~ta.~,~ with stealing by se::ivant e The appellant .,e.1111.n~ was !f'Vitt-eo.·: as. charged an.d "'9nten~ed to five years im_prisi,nment,. T..h.e- ~.ther accused persons were acquitted. This appeal_ is .a!~~$t the appellant's conviction and sentence •. The appellant was a supplies officer empl:'V,e~, bf:.the,, Tanzania Electric Suppl.ies Company. The. pro.seouti~c.- al.J.~ged that he stole a total of 104 reams of p~per valu.ed, at. . shs.,168·,749.85, property c•f his employer. and that the theft, was committed on the night: of ·19/20 October,. 1981,,. fhe:re wee . u.ndisputed evidence that the· goods w~re kept in a st&,98 a.i.id • the keys were kept by PW.l Rehema 9 a stores clerk, The appel.Lant kept 1~:1.e ksys to the main door of the' l'lff.i.r-e ~~~Lng•, , The .store was in '8 different building fr.,m the offifttS• .,;,r'. On 19 October 198.l c 1.:i.ring office hott.rs, PW.~ S~lemani FW ,l , Barnabas and P.Wo4 ()mari were working ..... in the store .. arrang~..g - , goods t ere and performing other rluti·es. · .After office.. h.4.lJ.r-9, .. - .. · · ~ ~ ' ~ they locked the office and they said that they left the·ke.Y•, '" - • cc· to the store i.n a drawe:' in PW .1 Rehema' s office.· ,1'.ri the. follcwing aa~, wh.Gn the store was opened, the reems of .. pape:, : were found stolen. ..,. _. 2 - ... The appellant was convicted because he had the key te the· main door of the office and the trial magistrat'e held that there was a possibility he took the key from Rehema' s ot-t'ioe and :·iised it to open the store to steal t.he reams of pape:r, In his memorandum_of·appeal anq in his su.bmiseion du.ring the hearing of the <appeal; ·the app~llant: sayai j.n•'ef'fect that PW.l Rehema who kept the keys to the store was ~eeponeible te1 the theft. It is, I think, meoeasary to point.l'\\.\t that -1,.rl a. criminal case, unless there fs express prov;sion, te the · Cftntrar.y, the onus of proof lies on the prosecu.tion. The - J;>l"oeacu.tion has the duty to prove the o.h.arge agai,nst the ,,aoou.sed beyond reason~ble doubt. · It is not fer ,:the ao0u.sed t·e'·pr-t,ve his innocence. In -this case, the evidence against -'tlhe appellant· was wholly circumstantial,· The prin·oipl.@s to be appli•ea.. in a· case where the evideitee;.is w!l;o.ll.Y • _c1rc_umstantia.l ar·e .we.ll known... In the oase ct R,, ,YL!~@.!ring ~-~ U~~--Koske· l9f9 E,A.C,A, 135 the· Cou.rt of Appeal had. this to - 1a31 "In a case· depending wholly on oireumstantial · evidence_, the court must find, before oonviot4Ag-, , that the inculpatoly facts are ino()mpatible ~tt.l\ the innocence of the accused and incapable ·ot .. explanation upon any other rea_sonable bJ'pothesi• than that of the accused's guilt.•• · ),, 1.; 1 §,!aen_}llusoke v ,. R, ~ 1958 E.A ~- 715 the 0ow.-t of Appeal reiterated the above principle and went on to cit'e with approval a passage in TAYLOR ON EVIDENCE (11th edition) page 75 whiQh reads as·follows; "The.-, :circumstances must be . such as to- prodv.oe ;·meral certainty to the exciu;sion of every reasonable doubt•' .. · :i<,w, · applying the above principles, -did the preeeei,itieb. prsve the appellant's guilt beyond reasonab·le doubt? l'r1m - - the evidence on record, the keys to the. store from where the reams of paper were stolen were kept by PW.l Rehema. The . appellant did not have access to the keys· or to the store that day. On ti . .ee contrary, there was undisputed evidene~ that apart from Rehema, three·. ,other people, namely, "PW,2 Sulem~mi,. PW. 3 Barnabas, anq. PW. 4 Omari had access .to the - 3 - store, on 19.10.1981 and the theft was disct,vered on the •morning of 20.10.81. There is no evidence that during the office hours on 19,10.81 t~e appellant entered the atore or received the keys from anyone, . According to PW. 4 Omari_, the store was locked by .pw.3 Ba,i:abas. Those keys weJte then :l'eturned to Pifll.l Rehema's office. The apJJellant had the keys to the main .dffice. do·ot :and· . he locked the _d9oi' . at .3 P~~•- a_ceording to 'PW_.4 Omari. , Th~ learned trial magist~ate stated in his judgement as follows:- ... tt-rhe accused admits· that no ....one can enter and· open the store inside without. h.i.m . (Kiwond:e) opening the main door, It was kn.owp. the key ot··the • store w?s 'being kept _inside ... ..... t'he . o:l'fice . . . by . . . Rehema. .So the possibi.lity is. that he._he _i~ ·- the person :·w40 had th_e ke7. of the main door · who opened· ,it. a.q.d, Vi8!1: t inside and. took, the·.:;tcey.·: of .the. store where- it was and took witlr h'im·: . . . . • . . • .... ~ . i • the alleged stationeries. I find he is:g~ilty. as charged," 0 The· learned trial magi~trate •· ass~.e~ · t:h;t~}~~-- ~~o~~~~ and the office were, ip. ~ , · · the same building, ·· ",, ... 'ln ':. ,tat!t:,.. • , · -~ : ;- .i. taos _ ~ r • we:ra · in differen,.t · buil9Jngs as .stated 'b.Y the .Proeee'4~io~ , -~ wi t:n·esaes •. T,ie: f?ct . ~hat JP,e appellant had: . :tl'1,,~.: k_ey~ . . '·.. · .... ,_te the·' mai.n office did~ n-o=t. _make_,-him . responsible . . .. . to»,' . wh,t;t~eve, ,.,j ·. . hap.paned in the- store because he d:id no.t h~VJ; t:~e keys to the store.- The· learned trial .magistrate said . _thei-e _was ; . { ~.·: ... ·. . . a "possibility" that the a_ppellant took the ,.key from Rehema '·s office and used it to open ·the store, If it w2s po.ss_ible for the appellant t-o do_ tri.at, it was. equall.Y possible for the other persons ·who had th_e· key t.o the. store that day to open. the store .and st;e~.l the stationeries.. Anyone of those people, includin•g PW .l Rehema, .q.ad access to the store on tl';e day the theft was committ~d. There was no conclusive evidence that the appell~nt knew th~t . . the key was usually put in the , Ir drawer. But even if he knew,.he was not the only pei-son who/ , l knew that. Those stationeries could have been stolen,at any . time before or after the keys were retu.rned to Rehema' s officJ. There are so many possible explanations. of the theft that one~,, . cannot say that the circumstantial efidence irresistibly pointed to the appellant's guilt. Anyone who had access to the keys could have co,n.spired with the watchmen at the gate to steal the goods. The ptosecu.ti6n fQil$d to prove the charge beyond reasonabl·e dou.bt and the aJ;>peal mu.st .succeed, ...... /4 - 4 - r This appeal is al].owed. The conviction, is· qu.as!J.ed #' • and ·the sentence is set aside. ?he appellant shou.ld be rele8sed from cu.stody forthwith unless he is otherwise lawfu.lly held. t~;,,,__,· W.J •. MAIN.A JUDGZ ·o • FOR TH] REPUBLIC, .. 0 j