19840919 TZHC Dar es Salaam

I+ .c; ·1 .j_b~ ·-w-,-, IN THE HIGH COUR'.I· OJ<' TJill'z1u:HiV APA, AT DJ\R ES SALAJJ:11 ili:EIJ.i.ATE JURISDICTION HIGH COURT Cill:L'IINl1L J1PPEAL N0.25 OF 1984 OHIGIN./1..L CRIMINAL CASE NO. 580 OF 1980 OF THE DISTRICT COURT OF MOHOGORO DISTilICT AT MOROC-ORO BEFORE E. M. E. MGSHI RM. ESQ., RESIDENT MAGISTRATE HAI\'ll S SUIJ!JD.1.1\NI MATE ••••••••••••••••••••••••• APPELLANT (Original Accused) versus THE U1'JIT.D;D REPUBLIC •••••••••••••••••••••••••• RESPOND.ENT (Original Prosecutor) JUDGMENT JHAVERI, J. This is ah appeal from the Judgment dated 18th November, 1981 by E. M. E. Mushi, Resident Magistrate in Criminal Case lfo. 580 of 1980 in the District Court Of Morogoro District at Mor6goro. The Appellant was the 2nd accused along with two others in the said case. The Appellant was charged: lat Count: - Stealing by person employed in the public Service c/s. 270 of the Penal Code. 2nd Count: - Alternative for 2nd and 3rd accused only. Offence: - Receiving stolen property c/s 311 (1) of the Penal Code. .All the three accused persons were acquitted of the 1st count. 2nd and 3rd accused were also not found guilty on the 2nd count but they were convicted of the offence of being in possession of property suspected to have been stolen 'or unlawfully acquired c/s. 312(1) (a) of the Penal Code. The last paragraph of the Judgment of the trial Court is material which reads as follows:- 'However, the accused No.2 and No.3 cannot be left at large. For it is a fact th..~t the accuseds did obtain the cement illegaly from whomsoever they got it. In the alternative ·therefore, I will substitute thereby the offence of being in ossession of ro ert sus ected to have been stolen or unlawfully acquired cs. 312 1 a of the Pe~.nl Code. Accordingly they are found $',lilty and thus convicted.' ~ith due respect to the learned trial IvJagietrat~ there is a serious misdirection by him. J j Conviction cannot be based on a probability which the court thinks ,· or even en opinion·about the matter but should be strictly based on the· evidence before it. This also applies to alternative verdict. Having come to conclusion in his Judgi;1ent as follows:- 1 •••• • tt Is possible that·the accused No.2 and 3 bought or obtained the cement from another source - e.g. the drivers · who transported the cement, or the other clerk, who cleared the 3rd wagon No.52766.· But it is also possible that they might ·ha e. bought it from the accused No. 7 • But the_n this would be a matter of guess work. 81nce the accu.seds have been acqu:i. tted of the count of theft, the consequence i.s that tli.e alt~rnative count of R0 ceiving Stolen also fails. This because an accused is convicted of recei.Ving stolen property, the main ingredient to establish first and foremost is theft, In this case count of theft has bee.n dismissed, hence the count of receiving.' There should be a clenr direction by the court that there is adequate evidence before it to hold that the Appellant is in possession of property suspected to have been stolen or unlawfully acquired and thereafter sub- stitute the charge. This court holds that there was not adequate evidence which was beyond reasonable doubt to sustain the conviction on the substituted charge. The learned trial Magistrate in his reasoning clearly stated: ' •••• But it is also possible that they bight have bought it from the accused No.l,' In a criminal case there cannot be a higher burden it Proof then required by law. The issue before the court was not that the evidence of PW,2 and PW.3 is believed but whethor it is believable. If there is any doubt raised by the defen.ce evidence - benifi t of doubt ought to have been given to the Appellant, Evidence of PW,7 - Ho.madi Hassani is extremely significant in this case when he states intera.lia:- '•••On 9/10/80 at about 4,30 p,m. ,I was on duty, I was at the goods shed. Accused No,2 did request ne to assist him in trans- porting his bags of 9cment from the boggie to bring them to the goods shed. Together we went with accused No.2 in the boggie I found accused No,l, He was alone, Then accused No.2 entered into the boggie. Together with accused No.land Accused No.2 gave me bags of cement. I put the bags on a cart - and sent them to the goods shed, I sent - a total of 20 bags - in 4 trips each trip - 5 bags. I can identify the bags of cement that I sent to the goods shed, They are here in court,' This leaves no doubt that Accused No,l bas instrumental in passing 20 bags of cement to the Appellant. Further there is clear evidence of PW,5 which materially supports the Appellant when PW, 5 Nolascus Bernard states interalia :- , •• , •• On 9th October, 1980 I was on duty, Accused No,1 wns there too. He Caine to CJ:e.rk R. T. C, - cer:1ent - which ha.d arrived by Wagons• · . On 9th October, 1980 at nbout :i' p,m. Accused No,2 if he could get 20 bags of cement. Accused Ifo.l. told accused No,2 to go nnd bring money. He can give it to him, . Accuse~ No.2 said that he had no money. He went home• I-Ie came back, e brought money, He gave it to the .R ;.. - 3- Accused No.l. I do not know how much. But I saw it give the accused lfo.;l. Later I sn.w bags of cement brought into the shed. I do not where it wns. But the cement C8.Lle into the shed. Accused Ifo.l told accused No.2 that he would bring hiLl his receipt.' PW.6 Jacob s/o Alois clso states th~t he saw accuGed No.3 gave ~ooe money to accused No.l on the sSL1e day. Goods shed is a open plncey there is a previous similnr trnnsnction between occused No.land the Appellant. Accused lfo.l wns found with the ooney - the learned trfal Magistrnte ought to have held that evidence of DW.2 and DW.3 is believa.ble. In any event there is a serious Disdirection by the trial court in not acting upon the eviJenoe of PW.5, PW.6 and PW.7. At the end of the cuse end on the whole of thecase there arc serious doubts ns to the ootu:i:·e of transaction between accused No.l and the Appellant. This court holds.that the prosecution co.se did not establish any case beyond reasonable doubt to comply with Section 312(1)(n) of the Penal Code. Accordingly, conviction quashed - Sentence set aside. Appeal allowed. ,. '::: . •: '\, . - ' . .... JHAVEm AG. JUDGE DAR ES SALAAM. 19th- Se_p~~mber, 1984: