19860306 TZHC Dar es Salaam

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION ,HIGH COURT CRIMINAL APPEAL NO, 13/86 (ORIGINAL . CRIMINAL CASE NO~ 104 . OF l984 OF THE DISTRICT COURT OF IFAKARA DISTRICT AT KILOMBERO Before: Lazaro, Esq., District Magistrate} KAILESH JIVRAJ • • • • • • • • • • • • . • APPELLANT (Original Accused) versus THE REiUBLIC • • • .. ·• ,. ·• ·• • • •• ~ • RESPONDENT (Original l?rosecutor) Charge; Stealing contrary to section 265· of the l?enal Code: J U D G M E N T: MAIN.A, J. Before the district court at Ifakara, the appellant, Kailesh Jivraj, was conv~cted of stealing contrary to section 265 of the Penal Code. He was sentenced to four years imprisonment. He now appeals. The complainant, PW.l Riaz Hassan Natool, said that on 29.10.1984 he put cash shs.100,000/= in a cupboard in his be.droom and left the keys on the cupboard in the room. He went to Mahenge, leaving his brother, PW.2 Nazim and a housegirl, PW.) Anthonia, in the house, The bedroom was not locked, In fact, Anthonia was cleaning the house and she too entered the bedroom. It was alleged that the appellant who is the complainant's friend went to the premises which are also used as a shop and asked for a newspaper, He was allowed by Nazim to get the newspaper in the bedroom·. The appellant went away with the news- paper. When the complainant returned from Kilosa 0n" 30.10.84 he found out that the money he had left in the bedroom cupboard was missing. Police were notified and the appellant was a~rest.ed and charged. The stolen money was not raoovared 1 The appellant's dafenca was that afte:i.- he had. o~ined Naz.tm.•e permission to take the newepape11, he Q.Ol.laf1i8d it t'l'om t.b.e bedroom and went away. Ha denied that hq 'eaw the c~pb,oatd keys or that he stole the money. Mr. Lakha, learned oou.n.sel fo~ the appellant s.i--~ two points, Firstly, ha 11u.'omitte<1 ths.t the ltait)..Q(l tri$l district magistrate arred in nGt eppreoiating that ?W,J Anthonia could have bean the thief, ~hie witnae~ wae the hou.segirl familiar with t1'e ha.u.1e~ She had oee.n working in the bedroom after thq ppta~t l.tt to~ Kiloea, She knew where the keye ware kept, ·The appelUAt, on tha other hand, was a stranger in the oedroom, There is no evidence that he knew t,n.at thal'e wae mo.ney in the c~pboard or where the keys were kept. Like the learned State ~ttorney who declined to e~pport the conviction, I agree that tha learned magistrate erred in taking Anthonia's evidence for granted, The appellant's defence was not considered at all. The appellant's ~ere entry into the bedroom where the money was kept could not 1 in itself 1be a basis for a conviction. Opportunity alone is not adequate to base a conviction, Furthermore, the appellant .was not the only person who had access to the room that day, PW.2 Nazim and PW,3 Anthonia had access to the room that day, and ·both had the opportunity to steal the money, Mr. Simbakalia, learned State Attorney, pointed out that both witnesses had an i~terest of Jkir own to serve and their evidence should not have been accepted, He oiteq Paul Murimi v, R. 1977 LRT n,34 in support of his submission for not supporting the conviction. I agree with both counsel that the evidence givbnbqy Nazim and Anthonia was unreliable. The second point raised by Mr, Lakha was that the evidence was wholly circumstantial and it did not irresistibly point to the appellant's guilt. Mr. Simbakalia conceded. The fact that the appellant went into the bedroom with Nizam•s permission to take a newspaper is not proof that he stole the money. As the Court of Appeal said tn several cases, including R. v. Kipkering arap Keske 1949 EACA 135 "In a case depending wholly on circumstantial evidence, the court must find, before convicting, that the - 1 - inculpatory facts are incoi:ipatible with the innocence of the accllsed and incapable of explanation upon any hy:p::;- thesis than that of accused's guilt". In this case, -the evidence fell far short of proving the appellant's gllilt. There is a possibility that persons other than the appellant stole the money. This appeal is allowed. The conviction is qllashed and the sentence is set aside. The appellant should be released from cL1stody forthwith unless he is otherwise lawfully held• AT DAR ES S.AL.l¼.AM 6th MARCH, 1936 Lakha for the appellant SSimbakalia, State .AttorneyI for the Replll '_:.::).