19800714 TZHC Tabora1

4W 'IN THE HIGH COURT OF TANZANIA AT TAB ORA APPELITE JURISDICTION / .. (Tabora Registry) (Hc) CRIMINAL APPEAL NO. '76 OF I979 ORIGINAL CRIWIAL CASE NO. 468 O1978 'N OF THE DISTRICT COtJRP 'OF ICAHAMA.' DISPRI CT ' ATKAHAMA. Before: Y. K. Chanzi, District Magistrate. KIBELAS/OMAGANGA ......... .............. ApPELI.ANT versus TIE REPIJBLIC . , . . • • . • . • e. o •'. . .', . ' ESPOIDENT CHARGE: Stealing by person employed in the Public Service c/ss. 270 and 265 of the Penal Code, Cap. 16. JUD.GM.NT MUSHI, 3: The appellant KIBELA MAGANGA, was charged and convicted for an offence of Stealing by a person employed in Public èervice c/as. 270 and 265 of the Penal Code and was sentenced to three (3 years irisorim :t He is appealing against such conviction and sentenOc. .,.. The case was based:'oñ circumstantial evidence, which was that the appellant was left issuing kèroene and was instructed to 1ok the store after issuingthe kerosene.' It would thus appeai that the .appellan.twas the last 1nioi person to have had. aess to the store. Briefly the'acce'pbed facts were that on 17,"11/78 one Mrs. Ester Makinga - PW.2 who is a Senior Nursing Officer opened, the hospital store in the evening . in order to issue kerosene for the use in the wards. After opening the store she then instructed the appellant to issue kerosene to nurses for the wards. .PW.2 took the store key and locked it in the office. The store door is apparently not locked by the use of the key. It has some of these self-locking locks. 1 The appellant was required to just shut the door and would. lOck itself. In the same store 'where kerosene was kept,. were also kept sewing machines. PW.l - Abdallah who kept one Of the keys. to the store told the court that when he left for home on 17/11/78 he left three sewing machines in the store :bit on the following morning he found one head of sowing machine missing. ........./2 „.,. . - 2 r The appellant who waS.a watchman denied the charge. The point at issue is therefore whether the more facts that the appellant was left to lock the door. in which the sewing machine were, and that one sewing machine was found nising the following morning, conclusively prove that the appellant must have been the thief. The law regarding circumstantial evidence is well known and finally settled. Defore the court Can act and convict on circumstantial evidence the court must be satisfied that the inculpatory facts are incoflsistent with the innocence o the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. See (196C) 780 - Ilanda 5/0 Kisongo V. R. Can we Say in, our present appeal such inference is irresistible? The answer is certainly in the negative. First, there are two sets o keys to the store. The first set is kept in the Senior Nursing Office and any body desiring to take something from the store takes the key The other one is kept by tho tailor who presumably moves with it. Although PW.1 Said he lft the store intact, when he left the place the :revicus night, PW.2 did not say whether when she openecithe store, the sewing machines were in the store. The n-icst likely thing is that she did not check it. In the morning when the theft was discovered, the store was yet cioned by another person whose name is. Saic3i who is desc'jbod as an Assistant Store Keeper.. This Saidi is reportod.to have informed the tailor - P14.1 as early as 7.35 a.ro. that the se4ing machine was missing. This Saidi did net give evidence as to how ho discOvered the theft. so early tht mcrning. In this case there are clearly co-scisting facts which render an inference of guilt on the part of the appellant improper. It would therefore b unsafe to allow the conviction to stand. The learned trial magistrate in his judgment included the possibility that FW.l - the tailor who held one set cf the keys and the nursing officer - PW.2 could have stolen tlmcind. -Jith greatest respect, there was no ” evidence to come to this finding. Anybody leave apart.; these two, could have taken the key from the thrsing 0ffic.3. and opened the store like Saidi did. A much'ore serious misdirection was ex½ressed hy the learned magistrate when ho said: tIf5I have earlier stated the accused has not donied the charge in hfs defence before this court. And the fact that the accused never tried to defend himself against the charge . l3vollec1•.aainst him strengthened the case for for the prosecution before this court during trial". . , . S -3- The ;ruth is that when the charge was read to the appellant he clonic d the charge and at no point during the trial did ho admit the offence. How then does the trial - appe1-1-a-cHd-n-deny-the---of--fenc-e-±-n is hLefeflce? This was a misinterpretation of the evidence The fact that the appellant did not speak on what happened the previouc night did nt under any stretch of ima'ginatio 4~ 4- _4__4 LJJ'JL1LLL CA 'ji. UllU Li. £ S For tEiasons IThave sttëbcve The apP e a ffust_ I set aside. The apellant must be set at liberty unless otherwise lawfully hold. Ta b or a, _ - N_Mo MUSS S. lkth July, 198O JUhGE S 1Lt.h_J.uLy_,_l9&O Coram N. V. i"ushi 1 J. Appellant -Absent. - - Mr. Chaila -Stae Attorneyo Judgment road in Chambers. • N6 M. JUDGEO • 5 5 - S S -