anzigar so soko vs republic 2008 tzhc 256 26 august 2008

IN THE HIGH COURT OF TANZANIA

AT SONGEA CRIMINAL APPEAL NO. 13 OF 2008 SONGEA D/C CRIMINAL CASE NO. 483/2006 ANZIGAR S/O SOKO............................ APPELLANT VERSUS: THE REPUBLIC...................................RESPONDENT HEARING CONCLUDED - 24/8/2008 JUDGMENT DELIVERED - 26/8/2008

JUDGMENT KAGANDA, J. The appellant with another were charged of office breaking and stealing contrary to section 196 (1) of the Penal Code, on judgment he was convicted of stealing contrary to section 265 of the Penal Code. There was only one witness for the prosecution. The appellant had advanced about six grounds all based on the issue of non identification of the stolen property to TANESCO and non production of it before the trial court. The learned State Attorney in support to the grounds of appeal submitted that, PW.Is' evidence was mere hearsay as such there was no evidence to support the charge against the appellant. I totally agree with him on that hearsay evidence is not admissible under the law of Evidence section 62. No court of law would act on such evidence, the learned Resident Magistrate ought to have reminded himself of the law for proper justice. Courts of Law are there to enter justice, it is therefore a professional sin to act so carelessly and unprofessionally. I believe the learned trial Magistrate knows the principle of Innocence on that all people are innocent until proven guilty. The burden of proof lies on the prosecution side and in criminal cases that proof must be beyond doubt. In the case at hand the only witness was not worthy a witness and did not state anything in support of the charge sheet. With regard to the charge, the learned trial

Magistrate did not bother to read it because had he done so he would have noticed of the serious error, on that section 196 creates the offence of Murder not office breaking. That offence is found under section 296 (a) of the Penal Code but even if that error was rectified, there would have been no evidence to support it. Definition of the offence of theft or stealing for which the appellant was convicted has been defined under section 258 of the Penal Code. Among the mayor elements to that offence is the convention of ones property, that means there must be evidence to prove that the stolen property has its owner or is owned legally by some other person. In the case at hand no witness claimed title to the said property infact it was not identified by anybody nor brought to court for examination and admission. Section 110 (1) of the Law of Evidence Act (Cap. 6 RE - 2002) clearly provides that:- (1) "who ever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists." Further under section 119 (supra) the Law provides that:- " When the question is whether any person is owner of anything to which he is shown to be in possession, the burden of proving that he is not the owner is on the person who asserts that he is not the owner." With that law P.W.I ought to have given proof of

TANESCOS title to the said volt meter. His testimony was on allegation that the appellant was an employee to the Retired Army Association, that was not sufficient to implicate the appellant to the offence charged of or Convicted of. In the event I find that the prosecution not only that had failed to prove their case beyond reasonable doubt but they did not prosecute their case because there was no evidence at all to support the charge. The trial courts judgment is hereby quashed and sentence set aside. The appellant who has been wrongly incarcerated should be set free henceforth. Right to appeal. S.S.

JUDGE 26.8.2008. SSK/ESY.