19730425 TZHC Dodoma

I. - f .4 f IN THE HIGH COURT OF TkNZINIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRI1IINAL APPEAL NO. 39 OF 1973 ORIGINAL CRIMINAL CASE NO, 130 OF 1972 OF THE DICTRICT COURT OF MBEYA DISTfJCT AT NBEYA Before I. H. II Magesa Esq. •.. Resident Magistrate ELlA THO1'IAS LUVANDA PPELLANT (Original Accused) Versus THE REPuBLIC S.. .5. ••, t) T1 L DI'\ TTV LJJI (Original Prosecutor) Charge: Stealing from motor vehicle c/s 269 (c) and 265 of the Penal Code, Cap.16 Vulume 1 of the Tanzania Laws. JTJDCEi'LNT 1, 1ZAVAS .J - The appellant was charged wi -th and convicted of stealing from a motor vehicle c/s 269 (c) of the Penal Code and sentenced to 3 years imprisonment0 He has appealed to this court against the conviction and the sentence, ' In admiting the case or hearing this court minuted Identification of the injection pump as that of the complainant appears uns ati s fac t ory u. 4? The case for the prosecution was that on 5/4/72 one., George (PW2) discovered that the fuel injection-pump of one railway-bus No RAE 433 had been removed from the bus and replaced with another. Investigations were carried out and the appellant who owned a bus similar to that of the railways - LAYLAND ALT3ION, was arrested. The engineof his bus was inspected and George (PW2) is alleged to have iditified the injection-pump as the one removed from the railway bus. One Bernard Kastila (2W3) gave evidence to the effect that he identified the injection-pump left in the railwaybus as that of the appellant as he used to repair the appellantts bus. In his memorundum of appeal the accused arues that the lower court erred in convicting him as there was no proper identification of the injection-pump as that of the railways. The learned state attorney argued that there was sufficient identification of the injection-pump found fixed in accusedTs motor-vehicle as that of the railways. The learned state attorney also referred to the court the evidence by Bernard (PW3) who told the court that he identified the injection-pump (exb.B) fixed in the railway-bus as that of the accused. . . ----,_•-- -2- 4I- :. i' In this case the vital issue,to be decided by the trial court was whether the injection pump (exhibit A) found fixed in the engine of the accused's bus was amply identified as that belonging to the railway bus No.RAB 433. ceorge (11 2) who is apparently employed by the Railways as railway-buses foreman gave evidence to the effect that he identified the injection-pump (exbit A) as the property of the railways because of its colour and that it had its excessive fuel lever removed. He also told the court that the colour of the injection pump was similar to that of the engine of the railway bus. The serial numbei'of the injection-pump could not be read ad it appeared that they had been rabed-off. The accused throughout the trial and in his meeiorundum of appeal argued that the injection pump (e)Cbit A) was his property and that the missing seriel. numbers got rubbed off when the injection-pump was being repaired. He deni?d lmaowing anything tbout the injection-pump (exb B) found -fixed in the railway-bus. It is a wellknbn fact that it is impossible to distinguish one given motoivehile spare part from another similar sparepart if both are Of the same car model without pioduction of the seriel numbers of each of the disputed spaxeparts See - -Henry . Ibrahim VR (1972) H.C.D. 178. In convicting the accused the learned magistrate said: I reject the claim of the accused because if Ex.A ------ - ' was his property why the serial number was rubbed off?. But as I have already mentioned the accused in rebuttal said that the send numbers maw have been erased when the injection-pump was being repaired. This defence may not have appealed to the trial magistrate as in.cingand he was perfectly ontitled to come to that conclusion; bi.t, as it was held in MOSHI d/o RJABU (1967)H.C.D. 384, a xagistrate's refusal to accept a defence as truthful is not a proper basis for a conviction. ) In a criminal case all that an accused need do is to raise a reasonable doubt as to his guilt - Fi;ELSZO KIULA VS R (19) H.C.D. 369. The burden of proof in a criminal case is always on the prosecution; and this burden must be discharred beyond all reasonable doubt. An accused has no burden tunless otherwise provided by statute) whatever to prove his innocence. As there was no evidence of seriel numbers to support the claim that the inj ection-pump was the property of railways it cannot be said with that amount of oentañtg required in a criminal charge, that the same was the property of the railways. The evidence regarding the colour of exhibit A and that of the absence of seriel nualbers as well as the evidence of Bernard (PW2) that exhibit B belonged to the accused only showed that there was grave suspicion against the accused. But this grave doubt against the accused did not amount to proof beyond all reasonable doubt that the injection-pump (exbit A) belonged to the railways as the Railways failed to show by serial numbers that the pump belonged to their bus RAE 433. Even if, for the sake of argument, this court was to hold that there was sufficient identification of the injection-pump as that of the railways, the facts would not suport a conviction under section 269 (c) of the renal Code. . . . - .--- - - -3- The section refers to things hoingCoflYeyed. by or deposited in a vehidle rather than to parts of a vehicle - SeeE3SAN RAHAI)HANI VS R. (1968) HOC.D. 244. As there was no adequate identification of the said injection—purp it would be Cxtremely unsafe to suppoit the convictions The convictioh is quashed and the sentence is set asid The accused is to be released forthTith tnless he is in custody in connection with another matter. DODOI'IIA. N. . 25th April, 1973. Judge. /Marn.