19801023 TZHC Dar es Salaam

IN TI-M HIGH COURT OP TA1ZANIA AT DAfl Ed SAIAAM APPEllATE JURISDICTION HIGH COURT CRIMmAI APPEAL IO. 197 OP ±979 ORtGINAL CRIMINAL CASE NO. 1319 OP 1978 OP TI DISTRICT COURT OFDS.S.M. DISTRICT At KIUtI Before A.E. RWECHUNGURA, Esq., Senior Magistrate IDDI KASSIM ... .:. . . . . IS1AII1 ABDALLAH •S..'... . • . . . i......a...... .-.... p... i Appellants versus THE RETJBLIC . ..,, . ... s.., •.... ..j. Repondekts CHA1tm. Convicted of stealing by servant c/se 265 a 271 of the Penal. Code. JBDGNT • . In this case. the appellants (and another poron who was . acquitted Were 3ointly charged with nd oonvidt . ed o ee3.ing b CX'P* c/se 265 and 2'Tl of the Denal Code and each sentenced to three ys mprisonrnent. • They are hppealing against both the conviction and the sentences imposed. Arguing againbt the convIctions and the sentenás inosed the learned doine1 for the appellants submitted that there was no evtdeñce to ±'oye that the eleven bags of cement alleged tq have been so1ei1 by the accused wem p1bd or left in 4he by 'iei4 It was also ar60A that tht said bags of oemeit were not produced in court as exbi. • As for the sentences it was the defence argument that there was no evidence before the lower court that Port Land Cemeyt company, the said owner of the eleven bagp of cement, was a. parastatal oiaation 3 within the dett.nition under sectionLof the Minnum Sentences Aot No.1 of 972 so as to Call for impcition of the mandatory minixwim se$'tence of three years ixnprisonent. It was finally argued that the turnbóy and the driver of the truok in which the bags of cement were loaded were not called es vitnessea. In rebuttal the learned state attorney argited that the wo accused failed to explain )iöw the eleven bags aame to be in the jory and iIt off—loaded from the trtzo1 and that the trial mA',istrate found acou3ed.'s defence not worth of credit, : 2 As for the sentences imposed it was the Republic argument that the lower court was right in -tckixig judicial notice that the Tanzanin Portland Cement is a parastatal orgcinisation. The following undisputed facts led to the arrest and arrai- gnment of the appellants:.. ... . . On 2/9/78 the appellants were employed as labourers by the Tanzania Portland Cement Company. Their duties included loading arid off- loading cement bags to and out of trucks at the Wazo hill department. On that day they loaded 80 bags of cement at the Wazo Hill depot in a truck and they were, with other labourers to off-load the bags of oomerxt at Malindi depot. They r9aohed Malindi depot and off-loaded the bags. As the -tir vehicle was leaving the depot and was about to.p.ss t o.ughthe gate, a tficer,by.the name of Nelson Nathtnue, (P'Ji64),. stopped. the truck and asked the driver and the turnboy whether they had off-loaded all thi 80 bagsof cement. Both the driver and the tu:jédinthe .... affiruative, Nelson was however suspicious and cbked the mOtor vehicle and to his surprIse LOurid that there were in fact eleven bags of cement behind the lorry, .. .. . The security officer interrogated the shift clerk (the mri who was acquitted) as to why the eleven bags had not been off-loaded and thereupon the ahi±t clerk suzimioned the two labourrers (the .ppellarits) and asked them as to why they had not off-loaded the bags of cement. It was the evidenoe of the security officer that the. two accused initially kept quiet but that they later asked. for pardon. It was on these facts that the appellants were arrested and charged with stealing by servant. In his defence the first appellant argued before the lower court that it was the driver's duty to see that all the bags inhis truck had been off-loaded. He argued that as far as he was aware he had, with other labourrers, off-loaded all the 80 bags of cement. . The second appellant argued that at the time the bags were off- loaded from the truck he had gone home to break his fast. He was apparently Lasting at the time. .. . In convioting the appellants the learned Distriot Magistrate said inter alla: -.---_- "Accused 2 saya all the cement bags on the nVv were off-loaded .butI have a tendency nQ.t to believe his story for I cannot in the name of reason see where the eleven bags found in the motor vehicle came from. Likewise accused defence of alibi does not help. .13 :3 him. As it was accused 2 a nd 3 must have either by themselves or in collaboration with driver and turnboy purposely left the eleven bags on the ia/v.. In othet words they wanted to get away with the items but were nipped in the bud." From ti1e learned trial magistr.4e's lariguge, he did, not believe accused's denøe as credible, And as rightly argued by the learned state attoney, bhe trial court is alwaysin better pdsitlOnto assess the, credibility of tub witnesses than the court hearing the appeal. But despite the Lact i hat I have no quarrel with the lower court's findihg regaiding aocuseds credibity, It is one thing to say thai an acottsed is n4 telling the truth in lus testimony and quite another thing to say that beeaiisean accusci is telling lies in his defence he must be guilty of the offence oharged4 As it was held in the case of MOSHI djLO RAJABU Xv RJ)361) HCD.'384 - . "The magistrate's reftwal to accept a.defene,as'trut1- is not proper basis fr conviotión."' The onus d±' proof in a orimnal case ib alWays on the p±oae cution. An accused has no burden what eo ever. to., prove his innooeioe., As rightly argued by'he, learned defenc cou nse th• driver and the tu.rnboy of the truck would have been crucial wrtnesses in the case. They were from the evidence the people who could havç told the court how, the bags of cement came t0 be in the truck. As y did not give evidence, the first appellant's defence that it was the responsibility of the driver to see to it that all the bags of ceent were off-loaded !Was not effectively rebutted by th'e prosecution. . . -: Asfor the second appellairt 'a de,fenc,e of alii. there was no onus on him to ,,prove his defence of alibi. All., that. he needed was 'to raise a reasonab].e doubt thä± he was not 'at the scene when the alleged offence was oonmu,tted. The decision of this court in Ry, RUTMA. NZUNGU (167) H.C.D, 445 Is relevant in this case. - That being the position in law I tend to agree with the learned deteneeOUnsel's argument that in this'.case'the prosecution faIIed'to prove the charge ainst the appelithits beyond all reasonable doubt. E ven if for the sake of argument there was evidence to connect the accused with the office of steali.ng by servant, there was no evidence that the Tanzania Portland (Jenient Company 3, a affi?d au thepityJl unde sse*tex 3 of the Minimum Sentences Lth.e Act, 1972 so as to subject the accused persons torigors of the Act, and thereby imposing the statutory minimum sentence of 3 years imprisonment. Being a penal legislation the provisions of the Minimum Sentences Act have to be strictly construed see the decisions of this Cou.t in - ~ . . ./4 V. 4 OSi iir.Rw& vi (67)IV2 57 and KMUHAJDA rit (1974H.a.D. 45, In view of the above decisions I do not agree with the learned state attorney's argument that the trial ooui't was z'ight in takJ4 34dioigl • notIce that the Tanzania Portland Cement Company, the ownez of the bags of cement, was a specified authÔtity under the Minimum entenoeS A.o, 197. I agree with the learned defence oouusel that on the evidence tendered in the lowex court it would be extremely unsafe to support the cóñvjotions. The.00nvictions are accordingly quashed and the sentences are set aside, • Both appellants are to be released forthwith unless they are &herwiae lawfully .heJi, DAR IjS SALM.M LS. /11AAS. 2318O