19841116 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT D.AR ES SALAAM 1.J>PELLATE JURISDICTION HIGH COL1lT CRilv'.IINAL APPEAL N0.40/84 ORIGINAL CRIMDJAL CASE NO. 777/1979 OF THE DISTRICT COURT OF ILALA DISTRICT AT KISUT1"! ~1:'1,n,::, ~-r:rGURU SENIOR RESIDENT MAGISTRATE :MAULID MAS.ARE •••.•• , •• , •••••••• • •••••••• APPELLANT · (Original Accused) versus Tifil UNI TED REPUBLIC • i • •••• , •••••••••••• RESPONDENT ~, (Original Prosecutor) I JUDGMENT . JHAVERI, AG, J. Ibis is an Appeal from Judgment dated 25th April, 1984 in,9rimina1: Case No. 779 of 1979 in the District Court of Ilala District at Kisutu. ' ,. The Appellant was charged with stealing by person in Public Service c/s. 270 and 265 of the Penal Codeo The·Appellant was 3rd Accused along with one Hassan Kim.eta and awe Kasigo. Particulars of t_he Offence re~ds as follow~~: Hassan Kimota, Jane Kasigo and Maulidi Masare are jointly charged on or about the 6th September, 1979 at unlmown time in the main Stores of the Ministry National Educ~tion Magogoni within the District of Ilala, D1 Salaam. Region. Being a persO!!, em2loyed by ~he Ministry of Education as Typist and as and as a store clerk~ - . 1. • a clerki,did steal 94 casset~es Recorders type Audio tutor 771 valued at • lo, ~ - Shs. 285,ooo/= and 92 radio•Pliillips valued at Shs. 36,800/= total value of the property stolen is Shs, 321,800/= which came into their possession by·~ . virtue of their employment being the property of their employer the Ministry . of National Education. The 1st and 2nd accused were aqui tted .~ and how 'ilus . is an Appeal by the 3rd accused both against conviction and sentence. The Judgment of the trial Court has three fundamental flaws:- (1) The conviction of the Appellant is based not only on circumstant1·a1 evidence but totally inconclusive evidence. (2) Though the trial court itself ruled that it was necessary to visit the scene of crime - there is nothing on the record whether any inspection made and wl_?.at were the observations of the Court. (3) At the end of the case and on the whole of the case if there is any doubt in the prosec~tion case - the Appellant was entitled to acquittal •. - 2 - The last paragraph of the judgment sums up the Prosecution case as · viewed by the tria~. court. 'Before we pen down we would like to make some remarks/observations on the way this case has been poorly investigated the police appears to have put in half hearted efforts - to say the best in their investigations. Had they been deligent enough, we believe not only more culprits would have been booked, but also a stronger case would have been made against all those who were made brought before the court. With due respect, the court should not assume the role of investigator. nor of the Prosecutor and then proceed to convict. The aforesaid remarks by the court are pertinent in the sense that the trial court itself believed that evidence before it-was inconclusive and that they presumed there were more culprits'vrefe involved. In view of these remarks the learned· Magistratoo misdirected themselves when they stated in the Judgment inter alia:- 'The only possibility left being that the articles· were cunningly removed from the stores either by the 3rd accused himself or with his knowledge and active participatioL~ Again with due respect, there wns no such evidence_ before the trial court in relation to the Appellant nar there was any evidence of that nature linking the Appellant with .any other person directly or otherwise nor there was any sufficient evidence-before the court to draw any such inference. Conviction cannot be based on a mere pre-supporition by the court. Secondly, at the end of the Proceedings on 20th December, 1983 the court held as follows:- 1The Court is of the view that there is a big• necessity to visit the locus in quo to ascertain itself about the position of the store and the window allegedly broken. Therefore court to visit the place of the Orime on 21st December, 1983 at 8.30 a.m. 1 This shows that the court had grave doubts as to the Prosecution case and defence ve:raion. Yet there is· nothing to show on the record that the court visited the scene. If it was done when and ~n.whose presence. There is no note of any observations made nor there is any reference to it in the Judg- ment,. Again with due respect, this is a gra.ve and material.ii'regalarity on the part of the cou~t.and any such ClJiilission is not curable 1µ1der Section·346 of the Criminal Procedure Code as it has resulted into failure of justice. Thirdly, evidence by PW.6 - j)lllJSA" ALPHONCE CHARLE has been totally ignored. His evidence raises material doubts in the prosecution case and probably that was .the reason why the court wanted to visit thescene of the crime. No aq13~uat.e consideration has been given by·the trial court when PW.6 ...... ./3. i ; -- -· 3 - stated ·interalia:- _ ~. .. •Before you reach the door of the store there i~ a small· .corridor about 7 feet long':from tnc· last step of the· stair - steps and one can see the small window·which wo.s broken from that corridor~ ::so one can · enter the store t_hrough the window which was broken. · · A ·sma.11 radio could pass through. 1 Further in his cross- exciLunation he stated: ~ ... The cassettes could have been taken out through that hole·-from the store. Also ·a person w:i. th intelligence could go through the· 'hole to the store. 1 · If this evidence was given its due consideration it would·restilt in ~J . . ·1 considerable doubts as to the ~rosecution case. Ti-iis court holds that nt no stage the Prosecution-had proved its case beyond_ reasonable doubts. Accordingly, conviction quashed - Sentence sot aside, Appellant to be releasc·d forthwith unless lawfully held citherwise. Appeal allowed. -..,.:__ -:: ..-~, \_, ·- ' ... ~ . , . J.liAVERI - AG. JUDGE 12/11/84 .. 16th November, 1984 Coralll: Jhaveri, Ag. J • Lakha for the Appellant. Rutashobya for the Republic, Judgment delivered. ~ ' ) '\ ·, ) \ _ __ L- '-. ._.-.. • • JHLVERI - . AG~ JUDGE __,...:.,.... __ DAR ES SALAt,)'iI 16th November, 198.4, .· •~ .. '.:•;;,,_ F ..'-• ' • . u:'"'f