19741010 TZHC Dodoma

- /, IN THE HIGH COURT OF TANZANIA 1' AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.96 OF 1973 ORIGINAL CRIMINAL CASE NO, 224 OF 1972 OF THE DISTRICT COURT OF KIOMBOI DISTRICT AT KIOME3OI Before S.N, Shariany Esq.............................District Magistrate CHAGULA SIO KINGU............................... .o• .Appellant 0 (original Accused) Versus THE REPUI3LIC. 00 0 0 0 0 00 60 0 0 00 0 0 005 0 0 0 0 0 060 OSO 00 .Respondent 00,0 00 (Original Prosecutor) Charge: Cattle theft c/s 26 and 265 of the Penal Code. J U D G M E N T MNZAVAS J. In this case the accused was charged with and convicted of cattle theft c/s 265 and 268 of the Penal Code and sentenced to five years imprisonment 0 He is appealing against both the conviction and the sentence. On 20/12/72 one s Ramadhan Nkana (Pw1) had his sheep stolen. On 21/12/72 he received information from one Baud Mkumbop that the accused had slaughtered a sheep on 20/12/72. The complainant visited '.. accused's house and saw him spreading a sheep's skin on the ground to dry. The complainant examined the skin and found it to be similar to his missing sheep. He reported to authorities and the accused was arrested and charged with cattle theft. In his defence before the lower court and in his memorandum of appeal to this court the accused argues that the sheep he slaughtered belonged to him. In his argument in support of the conviction the learned state attorney said inter alia: "In this case the Republic has had a lot of difficulty as to whethet the conviction should be supported. The only evidence here is that a sheeps skin was found in the possession of the accused — The complainant argued that he identified the skin as similar to his stolen sheep. In my view there was sufficient evidence in support of the conviction". With respect 1! do not agree with the learned state attorney's conclusion. When I admitted the case to hearing I remarked that the only evidence relied upon by the trial court was that the skin found with the accused resembled the complainant's missing sheep. • I also mentioned that there was a misdirection by the learned district magistrate as to the burden of proof in a criminal charge. As the accused did not deny that he had slaughtered a sheep whose skin was found in his house; the question the lower court had to decide was whether the sheep the accused slaughtered belonged to him as he claimed., or whether it belonged to the complainant 0 In suppôrt of his claim that the sheep belonged to him he told the court that he identified the skin as belonging to his missing sheep because his sheep was black with white dots on its back. The skin found with the accused answered this description. It was on this evidence that the accused was found guilty of stealing complainant's sheep. With respect to the learned magistrate I do not think that 9• 500 ./2 • . . . .. .. 0/2 • .1 complainant's evidence that because the skin he found in possession of the accused resembled his missing sheep was sufficient identificatio± to entitle a court to come to the coticlusion that the sheep the accused slaughtered was complainant's sheep. It is a known fact that two sheep may have the same colour and as the accused- insisted that the sheep he slaughtered was his property complainant's evidence that he identified his lost sheep by the colour of the skin he found. in possession of the accused was not enough identification entitling the court to come to the bold conclusion that the sheep the accused slaughtered belonged to the complainant. As the accused or any other person coutd have owned a sheep which resembled complainant's sheep the complainant should have brought forward other evidence of identification such as marks he had made on his lost sheep. On the evidence there was a lot of doubt as to whether the sheep the accused slaughtered belonged to the complainant. The doubt should have been resolved in favour of the accused 0 In coming to his conclusion that the accused had stolen complainants sheep the learned magistrate said inter alia: "The accused denied the charge by defending himself that the sheep he slaughtered at the pombe club was his property but he did not either establish where he had got the sheep or give a satisfactory explanation as to why the prosecution witnesses were telling lies against him and why did he not call any person to support his unsworn statement that the sheep was his property", With respect to the learned magistrate this was a gross misdirection as to the burden of proof in a criminal charge. The burden of proof in a criminal charge is always on the prosecution. An accused person has no burden whatsoever to prove his innocence. The accused did not have to establish that the sheep he slaughtered was his property so as to be found not guilty of stealing it - Nor did he have to bring forward witnesses to support his case that the sheep belonged to him. The burden was on the prosecution to prove beyond reasonable doubt that the sheep the accused slaughtered was the same sheep stolen from the complainant. A conviction should always be based on the strength of the prosecution case and not on the weakness of the defence. With respect I do not agree with the learned state attorfleys argument 'that there was sufficient evidence implicating the appellant as the person who stole complainants sheep. It would in my view be extremely unsafe to support the conviction. The conviction is accordingly quashed. The sentence is set aside and the accused is to be released from custody forthwith unless he is lawfully held in connection with another matter.' DO DOMA 10/10/74 N. S ~ MNZ A~ JIJDG'- Appellant absent and unrepresented Amwilike. for the Republic/Respondent.