19870923 TZHC Dar es Salaam2

INTT.:~ TIIGII COURT OF TANZANIA AT DAR ES SALAJ\J/i " APPELLATE JURISDICTION HIGI-I COURT CRIMINAL APPEAL NOel7 OF 1987 , ,t. ( From original Criminal Case ,lfo., 189 of 1986 5i: the District Court of Norogoro District at Morogoro) ... JOHN' CHRISTI.AU~ ••••••••••••••••••••••••••••••••••• APPELLANT versus THE UNI~'ED REPUBLIC,•••••••••••odooo••••••••••••••RESPONDENT JUDGEMENT The appellant 1 John Christian 1 a.:nd another person whom I shall refer fo as the firs·i:; accused were jointly charged before the district court w:i.th burglary and stealing. The first accused was acquitted., The a:rpellant was convicted as charged, and he ,, was sentenced to imprisonment for one year in the first count and five years in the second cotmt to be servad concurrently. Briefly, •the prosecution evidence uas as follows 11 On the · night of' 14 May 1986 a motorcycle was s·tolen fi~om the house of PW1 Nelson Thomas. The house had been broken.into as Nelson slept and the theft was cliscovered in the morning,, N0lson did not know , who the thief' was., Ile reported to Police,. On 16 May 9 1986 PW2 Poli~e Constable Masatu, · acting on informo.tion recei ved 1 ·searched a house in wliich he found parts of a motor cycle. PWl Nelson later identified those parts as those of his stolen motorcycle,. The first accused I s wife who was present during ·the sec1,rch alleged that the -mo·i;orcycle had been sen't there by the appellant for repairs. 'Ihe Hrst, accused was later arrested and. he "lioo claimed that he received the motorcycle from the appellant,. Ile repeated that allcgci,tion in his dcfenceo The appellairt denied that c.nd said. he knew nothing about the stolon motorcycle., In brief he denied the charges ~·c1,inst him., The trial mcgistrate convicted the appellant on the evidence g~ven by PW2 P.C.Naoatu.. B-t..;:li that was hoarsey evidence. The Constable told the court what 110 had been. informed by the first n.ccused' s wif'e• The woman did not give evidence :for tho prosecution~ So a,; the close of the c2.se for. the prosecution thc~re was only . ~' the hearsay evidence of PW~ru.nst the appellant. That evidence ". was inadmissible, Thero was no other nidonce upon which tho appellant could have been convicted• 'As I said, the only evidence against him at the close of the prosecution c::1-se was the hoarsay evidence of PW2 1Jonstable Ifosatu 1 and that was inadmissible in law, There was tl:i'ere:tore no sufficient ev:i.d0nce upon which the ' ') 2 appellant s-ould have been r0g_1.ti.red to defend himseJ_f • He should have been ooqv.i tted becc:.1.~ne none of the two proGecution witnesses gave evidence on which a conviction could h2.ve been b0,sed.- It appears that the le2.rned district rnagirri:;rate convicted the appellant on the evidence of the firs-t accu;sed 9 and that of DW2 Tabia Sadiki, tho first accused's girl friend~ Their evie.ence wa,s that the appellant sent the motorveldcle to their house f'or repairs,. The learned I\Jagi.st:c.::,te overlooked the fact that the evidcmce of the :first accused was accomplice evidence which could no,l.i be &eted upono Secondly ( the evidence was defence evidence and a conviction cn.nnot be based on defence ovid(2)11Ce1o The bvrdon of proof is on the prosecution - to prove the.case beyond reasonable doubt~ The prosecution failed to adduce evic:J.ence_. to prove its cace ago.,inst the appellant n.ncl the magistrate convicted the appellant on ·i;ho evidence given by tho clcfence. That was a gross misdirection when the magistrate said in his JUdgem~nt that he did not see· why DW3 Tabia should tell lie so That witness was a defence witness and of course she had every reason to give evidence favo~rrable to hor lover, the first accused4 Be tll2.-t as it may, the court should have considered whether the prosecution proved its case and no·!; whether the defence established .. the3.ap:pollant 1 s guil t-,1 The burden of proof· is always on the prosecution and never shifts to the accused. Tho prosecution miserably f'ailod to prove i·bs case, This appeal is allowed6 The conviction, which is not supported ~-.y the Republic, is quashed and the sentence is sot aside., It is ordered that the appellant should bo reloae.ed from eustacy: forthwith unless he ~1;.r· is otherwise lawfully held. ~~·~ (W.J.MAINA) JUDGE,. Dar es Salaam 23 September, 1987 Kya.ruzi, State Attorney, for tho Republic Appellant absente