19911008 TZHC Dar es Salaam

J.N ·... 3:E HIGE 'JO"J1{T ·'."lF T .rnZANIL .... H1(3f:. cci-;::;nr: '} rMINkf, ,~_[\)F: ..\L NO.- 172/09 OHL:INAL CRIMINJtl, C.iiS.8 1';0,, 1423 OF 1989 OF '.-1HE DISTRICT COUHT OF IL.,l.L;l DISTRICT ..lT KJ.VUKONI BEJ!'Oili:i J · W,;KLYOMBO PIUNCI.PJ.1.L ISSA MUSSll .AND /1.NOTHER,. ,, • ,.•••• ,Ai?.i?ELLANT THE UN 1 'T.'ED REPUBLIC, •• ~:, •••• , ••• RESPONDENT JUIJGMEN~ The two t1 )e.,..larr':o :, , ·thj,.:s case are b;:ot;hers vho were ewployed as watchi:ien b' ~ ga:1:age o,1me:r 9 one hioha..,ed s/ o ivfoha.Jedo They were found guilty ')f stealing ;;/ 8 265 of the Penal Cotli.• and sentecne_d to five years ir:uJ l:sou.:ient ?_:T tl:.e Dis-t:r·iot Cou1:t of :,.lala at· Kivukoni. They are now ,lJi;?ealing against both conviction a 1 ,0. sentence. Briefly~ t~e facts are az fol)owss On Ist fe0teuber, 1989 Moha~ed Mohawed, thei::- 8wpJ.oye:::~ had. obta:L1ed shs 350,0·,c/~- fro □ Interfreight Lirai ted and b;:-rJ':.gh·t it to the ga:.:·age at l\Honi ~ '.1<1weke District, so as ....i to pay salari •3s -to his staff there,; Payoent of .~alaries went on until about 5,00 p,cl. when he closed., By t'his tii:.e a 1 )tal of shs. 115,0op/- had been paid ·nt and a be.:.an.ce o:f shs 235;000_ ·•. rewained for ,furthe.r payuent on th,1. :f.'ollowing day e Mohaued locked tiH, shs 235 ,ooo/- in a drawer in. his ,if!ice r looked the door an.d went ·,'.O sit at the Verandah where the watc·1..;(m usually s:tt~ He resteJ. for J·)we ti.;;ef then_twent hoeie. -he dis0overed that he had . orgot ~n ;t;a:;:-;.;J.r the;, io.lJ::)1"{~,::.:.(; r..10:~7'i:1G_:.i·: ~: ,~.-~:-":V,G keYlil at the ve.randah and so he . rushed to thr-, 6 ai. age and asked the 1tp~,ell:ants i.f they· had seen his keys there. The 1\.:,.1,el:J ants denied having seen any j:,~sy,-s at the verandah or anywhere els~· ( lis the doors were locked, Ivioha.J'l\c; and his. clerk had to cut the padlu.ks before they oould openo Th~. L:r.:awer in which the money was kej;Jt was u.lso J.ocked and so it had to be ,y,okeno :Mohamed foll.rid the Drawer e11ytYr ~;he money had di~Jpearei:L, 'Ey this time the two' watchLlen h~ already gone :-or..ie~ Mohau1ed reported the watter to the police • . "./2~ .... 2 When the h.ppellants re;iorted for duty thG following evenillg thflY we~e asked it anybody had ever corae to steal while they were on duti the previo~s night. The 1ppellants denied and they were arrested by the ~olioe. They were asked if they had any Lloney at their howes and they re~lied that they did not_have any wones~ A sear0h at the house o! the 1st ,~p:pellant u_ncovered shs 39, OJO/- which the 1st il.k-'pellant claimed to ,e his and that he had aot it from his private businesses.· At the house of the 2nd appellant only shsojJOO/~ was found. The shs.39,000/~ found in the hotise of the 1st a~pellant was kept in a paper bag which Mbhamud 1~ cierk identified as the one in which the money from Interfreight Ltd was kepte The two Appeiiants were ta~en to Court and chafged with steaiing shso235sOOO/•o At the hearing of this appeai Mr. Ml"'!"'"·"'.·'3.., J.ea±n.ed advocate repre- sented the two Eip 1iellan~..; 9.nd .M-~·o 1tweii.gPJr _. J np_t':"( :!. State ,Attorney, represented L J .L._.,, ":)lio. He v;a '\!Jsistod by Il'.i.;., □ A;,akama, State Attorney Trai: -3e ft j t the end of £.to Mchor 1a s 1.":::r..li nions Mr. Mwengela 1 indioated that he did not support the conv--i_ction~ The Memorar.du-u of Appeal r·· :l::i-:R fi Y'3 ··- -"-· ,, ~ ,: a:i;·peai against sen terice. Howe-ver, i; i the oouse of Lis sul- -.: . ·, -:,. · .: . .1:c. Mchora odi:apiained ~~ainst the usj of citStimsiahtiai ejid~ri6e ~hd th~ darigef oi f~lttag oti it vii thout warning' In the setii:md g:fotirid Mr. I1fchora ;).)i:!plairled. that tiis trlai court had shifted the burden of prdof to t)Lv ~ppellarits in treetirig tlia offence of stealing as if it viere'the o:ffenc~ of being fowid. with pi8~~iif ieaso&atly ~ri~p~cit~J ici hrii~ beeH siole~~ Iri ~UpJ?ort of the fir§-£ grotliid of aJ?:i.Jeal Mr; Mchoraj iea:digJ. ~,Hirisei for tke ~~peliants; ~JbJitt~J that whore +.he evi~enc~ ±~ ~oieiy; diretlLlsianti ih~ ifiai cou~t has to uake surq of ihree wain tiings, naueli. (i) +,hat ear•h partf ·.u.:.• a:::- circ•· ~sto.nl"-3 1:mst be i)ro-.ed; (:.i) ... .;...,_ ... ., ::gnccs oust be consistent one with ~he othe.q and (iii) that the totality o~ the oircuc!tances is incapable of any other hypothesis than guilt of,. . the accused. Mr. Mohora subLlitted that in this case the f'ac·c that shs.35,000/- wasbro~gb~, to the garage frow Interfreight Liwited was no·t proved, the court raerely a~cepted the word of PWI without any evidence froLl Interfraight or sooe entry in thei:i books • .Bven tho fact of there leing a balance of shs.235,000/~ at the end of the first da.Y has not ·been pi'ovoJ.. Mr. Mchota submitted that iWI way have colleeted iess than Shso 350,000/- fro.u Interfre:i.g:~t- and rauoh less than shs. 235,000/- couid have ~ewairted or nothing at ail • .... /3 .. . 3 Simila•lY th.~ fao-i of locking the bulant>e · in the drawer has not been ~roved, P.WI has testified that he was assisted by his clerk PW2 while I paying salaries~ The possibility of the ooney ~eing stolen befoye the d~awer was locked cannot be ruled out. In the absence of evidence on this point, Mr. lric}?,ora subuitted; nobody knows whether the money was stolen.before looking the office or after locking it~ Mr. Mohora also 00.:.i.1,)lained about the relia·nce placed by the ti-ial court on the fact th~t a ~aper bag found in the house of the Ist Appellant with sbs.39,000/- was identified as the one RWI had ttsed to keep ah_s. 350,000/- he had collected froi.:. Interfrei 6 ht LiJ:.1.ited. He subwitted ,hat it was a misdirection to link the bag with the stJlen money in the absenoe of evide*ce that was the only ?aper· bag fro'm · Interfeight Ltcl since PW1 mu.e.i have h1:t~n paying salaries before this oocasion. Mr. Mchora f'ur1-~~ au submitted t·ha·t the s\UD __ of shs.}9,000/- found in the house of the 111.t appellaiit ot the sum of ,·aoo/-._ f oWid in the house of the 2nd ap~; cannot be said lo be anywhere near shs.235,000/- alleged to lla~~ ~-~ &~d ao it was +ong to link these suue with the theft of shs.235,000/•• Lastly Mr• Mchora complained that by requirin~ the appellanta-to explain where ♦ey g~t shs.39,000/-, for the 1st ap_pellantt and shs,3800/-, for the 2nd ap+llant, the trial court had shifted. the _burden of proo~ to the appellanta, He ·supcitted that in a eharge of theft the queetion should be whether- the ~tory given by the aoous,id is capable of being believed, and the accuse(\ has no duty to explain and satisfy the -·eourt as to how he - got the moneJ tound in his possession. The duty to explain, he .submitted, arises only it . a charge of being f' ound with property suspected to have been stolen, which ◄as not the charge here. He subcitted that bJr oonvio\1.ng·thQ· appellants of t\ie offence of stealing for faili•~ to give a eatiefactory e~planation the trial court bad shifted the bur~n of proot and in the process oooasi~ed a misoEhiage of justice. On the se~tel)ce of five years ir.1prisonment a'.lr, Mchol'a m d.lltti ... it wae manifestly excessive having regard to t~e fact $ha·\ ~---~11M.fll are first ofl-fetde:rs and PW1 the ooi;iplainant wa,; the • · ~iii ffl '8ta as he was negligent. The law on the use of circumstantial evidence 4 • In the case o~ lvIISW.iiHILI MULUGAL.A vR L1977J LRT n. 25 the appellant 'and another person were eo~;icted of robbery c/s 286 of the Penal Code. The facts were that the complainant who was drinking pombe at the home of the appellant was attacked a short distance from the appellant's house as he wat:. going away and it turned out that one of the people who attacked him was the .appellant. He raised alaru, the attackers ran away except the a~~ellant who rehlaine~ at the scene. There. was an allegation that the complainant was robbed shs. 290/- by the people who attacked him but this faot was not mentioned by the complainant when he . reported to his rescuers about the assault; The trial court relied on the bare assertion by the complainant that the appellant had robbed him. On appeal the High 0ou~t to\ilid th~ a~sault proved but reversed the trial oourt's finding on robbery. In dealing with the evidence of robbery Lugakingira Ag.J. ( as he then was) saids "As already observed the complainant never Llentioned to h:i.s resouers that he had been robbed. The appellant was alsv not found with money. The evidence that was available to :orrobOl"a te the ooi:a,t1lainant's word •11as wholly cirouustantial. It :~s und-eairable to act on the baJ:'e v;:,:rd of the complainant in the absence of oorrobuiative eviden~Ei unless the trial court has fully warned itself of the danger and is don'tinced about the oomplainant 1 e veracity. Bu+, as has been repeatedly laid down, cirourastantial evidence must·lead irresistibly to an inference of guilt and be incapable of any other reasonable ea:plana tiolil. '1 In the present case Mohamed Mohaoed, the complainant, suspected the Appellant? because.he thought he had forgotten his Keys at the verandah before going home and the theory is that the Appellant3 used those Keys to 0pen the office and the drawer in whioh the i..oney wc:.s ke~t. But as .Pointed , out bJ[ Mr • .Mchora, we have only the word of PWI on the money being locked in the drawer. The trial court acted on the bar3 word of the complainant and did not address itself to the possibility that the money was stolen before iWI left for his ho1.1e. Sirailarly, on the evidence relating to the paper ~II the trial court merely acted on the tare assertion of PW2 that the paper bag found with the Ist Appellant was the one u•ed to keep Shs. 350,000/- from Interfreight Licited. The trial court did ~ot address itself to the possibility of having several such bags since there was nothing special with the one found in the Ist ~i.:t:>.i:)ellant 's house. The existence of these possibilities weakens the inference of guilt as a reasonable doubt would necessarily arise in such a case. In the MISWAHILI case referred to earlier the failure of the trial court to take into consideration co-existing circu~stances which would weaken the inference of guilt was fatal to the oo.nviction of r.:>bbery. ••• /5- 5 The Court said: 11 1n this case the trial Magistrate took as corroborative I circu~stantial evidenpe the fact that the coraplainant had been drinking in collipany with his assailants and he had taken out u1oney in their full view to pay for ,pombe. He also felt bound to believe the c0wplainant because he thought there was nJ oth~r ground _U:i:JOn whi~h the a.ssaul t could be explained. In uy view he was entitled to take these \/ ' factors into a.ccount. But what transpires is that in doing so he failed to look for other co-ed,:::ting circucstance.e whieh could we~ken or destroy the inference of guilt." Mr. Mchora 1 s oo@plaint on the burde~ of proof is well founded. I~ a charge o! theft.the accused has no duty to account for p~operty in hie possession~ In all cases 'the duty is on the prosecution to prove all the facts forming the ·1ngredienta'of the offe&ce. There is no presumption that every~hing -,found on the ucc~sed is stJlen unless he ca~ show that it is not. PWI made . ' , ~o effort to identify the woney in the Appellanta 1 possession, all tha~ ~ he was able to da- was to □ ention the donolilinations of the bank notes. He said1 . "The money I had in office was in 500/-, 260/-, 100/-, and '40/.. , 10/- denouinations. There was also. 50/..; denomination. The 39000/.. shown to this court is the □ oney we .:;cit from accused1 .• 11 Clearly this is not evidence of iridetificati~n. Th~ denominations the witne&I • mentioned cover the whole range of denominations then available. I\ •an,not form the basis of even a suspicion on the part of - the accused. I reepect:ful.]J ;-' agree with Mx. Mchora, learned adv·ocate, that it'·,w~s wrong for the trial oourt to convict the Appellants b·e·cause they failed to expRin thei:r possession of shs~ 39·,®o/- and shs, 3000/- -rospeati velJ(, In the result I aw satified that the evLi.ence adduced at the trial was not sufficient to establish the guilt of the Appellants beyond :reaeo,a.bl.e doubt, The appeal is therefor·e allowed. The cdnviction of the Appellants ,ia quashed and the sentence of five ye~rs imprisonment is set aside. The, . •- Appellants are to be released forthwith unless they are otherwise law:ft1.1.l,y hel·d. The ~oney,: shs: 39;000/- found in the ho:µse of the Ist Appellant and shs 3800/- found in the house of· the 2nd .Appellant is to be returned ~ tke· respective owners~ Delivered in Cahmbers at Dar es Salaaw this 8th day of October 1991 .ff· the presence of: Mr~Mwengel~ for itespondent. iip;>ellants absent, '· { .