19871015 TZHC Dar es Salaam

IN TEE HIGH COURT OF TANZAIUA. AT DAR ES SALAA1.f APPELLATE JURISDICTION HIGH COURT CRIMINAL APP&U., NO. 116 OF 1987 ORIGINAL CRIMINAL CASE NO. 922 OF 1985 OF THE DISTRICT COURT OF ILALA DISTRICT AT KISUTIJ Before IlARIDI, Esq., District Magistrate AUGUST II-IO KASSANGA • • •• • • ·• • o • . • o o • • • • • • • • • • • t • •• •., •• o • .APPELLANT · ( Original Acoused) · versus TBE UNITED REPUBLIC. •••• , t • • •• •. •. • • • • • , • • ., • • o • • • • o • • • ~ RESPOWENT · .. . ( Original Prosecutor) ---- JUDm,~ SEKULE,_J 1 The appellant was charged and convicted by the District Court of na.1a District at Kj.sutu in Criminal Caso No.922 of 1985 of the cf-fence o£ Stealing by a person employed in the public service, contrary to sections 265 a.nd 270 of the Penal Code. The particulars of the offence being that on the 14th of September 1985 at about 09.30 HRS at_ Cha.ng'ombe · Inspector of' lforlcs Workshop ui thin the City of Dar es Salaam, Temeke District and Dar es Salaam Region, being a person employed by the Tanzania. Railways Corporation as a:welder did steal wipers valued at shs.2,484 which came into his possession by virtue of his.employment, the property of the said Tanzania Railway Corporation, Re was sentenced to serve a three yea.r term of imprisonment. The appellant was aggrieved by this decis.ion and preferred a.n appeal to this Court, At the hearing the. appeal before-this Court, the appellant was represented by Mr. F.s. Mbuya. learned Counsel and Miss. Barahomoka., learned ltate Attorney represented the. Republic. Afte:t" the hearing of the appeal, I allowed the appeal, qua.shed the ', conviction and ordered the sentence imposed. be sot aside, I further ordered that the appellant be released from prison unless otherwise lawfully held and I undertook to give reasons for this decision later in the judgment and · which reasons I_ will ende~vour to give in the course of the judgmen~. The case . for the prosecution in -the lower .Court was essentially cent.1-ed on the testimony of one Sa.id Juma 'Who testified a.s PW2. It was his ..... ,/2 evidence that the appellaht was his workma1te at the Workshop at Chang'ombe and that on the 14th of September 1985 he saw the appellant remoVing wiperi: from a mo.tor trolley. Ile asked the appellant as to what he was doing but hf received no reply from him. PW2 then went to report or call a watchman but the appellant ran away. He was not seen until the following Monday. The day of tho alleged incident was a Saturday. On the 16th of September 1985, the appellant was handed over to PW1 ·1 who was a police officer stationed at the Workshop,. According to Pi-11, he was told by a militiaman who brought the appellant to him that two wipers had been stolen and that the appellant was the suspect. He therefore took the appellant to the Railway Police. It was his evidence that the two wipers that were alleged to have been stolen were not handed.over to him,. ·Two wipers were however produced by PW3 and were admitted as Exhibit PI. That was the case for the prosecution. The appellant gave evidence on oath. It was his evidence that on the material day at about 10 avm• he left his place of 11ork to go for tea. Re was accompanied by one Mohamed. On their way, they passed at a place where motor trolleys a.re serviced. While there, PY.12 came and asked them what they were doing and that he retorted to P1f2 by asking him as to what he· thought they were doing. Fti2 was angered by the reply and he told them i.· that they were screwing off motor trolley wiperseo The appellant retorted to ~W2 again that if that is what he thouglitthey were doing he could go and report to any authority. Thereafter the appellant wont for his tea.. Uh.en he returned, ho was told that PW2 had gono to the Police to report that he had stolen -two wipers a.nd that he had run away. The day of the alleged incident was a ~aturday. On Monday when he reported on ci.uty he was arrested. Ile denied to have stolen the wipers. He called one witness in defence one Fredrick Usembo-DW2, whose testimony was essentially that the motor trolley from which the wipers were :c alleged to have been siolen was not in Dar es Salaam at the material time. It was at Tabora. _At t~ µearing of the appeal before this Court, Mr. J.•·~, learned Counsel f~r the appellant argued and elabora.ted the four gro\Ulds of appeal as set out in the petition of appeal. He however aban- doned.the fifth ground ot appeal which related to Sentence as the offence preferred wo.s a. scheduled. offence under the Minimum Sentence Act 1 and that the 3 yea:r term of imprittonment was in that contro;;t not mani:f'~stly escessiw if the conviction were to be upheld. • • • 0 . , ,• • /3 -3 Miss. B.il-aho~bka - learned State Atto~hey, declined to support the conviction and subni tted that tlie ·. · -Lprosecution had:failed to establish the case against the appellant, to the standard required,_ that is, beyotind reasonable doubt. -:- I 8.t:,"Tee; from the evidence te11dered, the oa.se against the appel:lant was not proved to the standard required by iaw. To start with, it does appear f'rom the judgment of the trial Court tha~ the lca:I'ried tfial Magistrate shifted the burden to the appellant to prove his defence or/a:nd his ;innocence. T'..iis is apparent from the questions he posbd and upon tv'hi.ch the decision to convict was based, as ' . it can be seen at the bottom of page 1 and. on page 2 of the judgment. Some of the que$tions posed wore for example: "l-D1cre did tho wipers produced in Court come fromf Wey did the accused not wait thb report of P1f2 ahd see what would happen to make himself clean. Aocused stole the wipers that is wey he ran away. I find him guilty d.na. i convict hirn. 11 From the judgment• it docs appear that no aitempt at all was made to . • ' I ._ eVD.luA:;'·e and aaseJs the proscotitioh case. Apart f±-om the reView of' the evidence ther~ is irl fact not a single line in the judgment on the I . . prosecution case. l-Ti th respect; that was a misdirection on the part of' the learned trial MagiGtratc. 1'hc apJcliant had no burden to prove his . I defehce leave alone his innocence .. It was enough·if' his defence raised a rcasorl.a.ble doubto !tis tho prosecutiorl who had the burden to prove the case agairu:Jt him beyond reaJonablo doubt. And that a conviction must 'be based on tho strongii1 of the p:fosecution case and not oh the weakness of tho defence c~sti. • I • Had the learned trial Magistrate evaluated. the case, in particular the prosecution case along these lines, he would have come to a. different / decision to the one reachedo The appella:nt•s reaction to Pll2 for exrunple, to the effect that if he thought that they ucre stealing he (PU2) could go and report to aJ1Y authority is a eon.duct which in the circumstances of this caso•was_not necessarily consistent wi-~h guilt. on tho part of the appellanto Particularly so since he procced.ed to go and have his tea. Further, according to the appellant is testimony - which st':1-n~_Wl-:-. chall'enged, he reported on duty 011 Monday after the weekead• an(:thn:t-...is where he was arrested hancted . . ,, ·• _. Lover to the Police. PU2 •s contention that the appellant ran awiy" was 111 these circumstanoes arguable and doubtful.. :- ·· The identity of the wipers that were produced and admitted as Ex.h.P1 was not also clearly established. According to PW1 - he was not given the wipers at the time when the appellant wa.s handed over to, him. P113, the person ~ho produced them in Court, did not explain in his testimoey how he came by them., Did he seize them at the alleged scene of the • .-•••• / 4 incident or were they handed to him by Pl72. These questions remained. ' un answered. It ;-ras the duty- of "lihe prosecution to have these issues, · resolved. Lastly, thore is ·the issue which DU2 raised in his testimony to the effcot that tiie motot tr6lley f:i:06 which the ·wipers in question were_ alleged 'to have been ·removed 1,ras ~ot in Dar es Sala.am at the material time. It was at Tabora. It would appear from tho_ Court rccorr, after tho_ testimony of this witness, the prosecution applied to the Court for pennission to call aVidence in rebuttal. The application seems to have been granted. Thereafter, howover, the record is silent as to what happened. tniother or not this application was abandoned, it remains anybody's guess~ '.Be that as it may? this contention standing unchallenged or un e.xpU\.incd as it docs, does raise sCB}c serious doubts as to how the allege,d thof't of the t-tipers could have taken piace in those circumstanoeso ~tis for these reasons ·as outlih~d hereinabove that I allowed the a.pp~, c;r;u.ash.od th,c ~tioll a.ncl ordered the sentence that was imposed by the trial court be set a.dcie and the appellant be released from prison unloss other.rise lawfully held: W• H. Sekul e JUDGE 15/10/87 Signed at Daros. Salaam this 15th day of October, 1987. W.H. SelQJJ.e JUDGE • I hereby certify that it is a true and correct copy of the o:ciginal. DAR ES SALAAM 23rd Deoember, 1987 0