na TZHC Dodoma 12

IN THE HIGH COU1T OF TANZANIA AT DODOMA. APFEIILAT: JURISDICTION HIGH COURT (RIMINAL APPEAL NO. 115 OF 1972 ORIGINAL CRIMINAL CASE NO. 8 OF 1972

OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA Before J. A. Mroso Esq Magistrate, Class .......... Resident Magistrate Oman s/o Fundisha ......................... ....Appellant (Original Accused) Versus THE REPUBLIC ................. ..... . a . . , ....... Respondent . (Original Prosecutor) — Cherge Stealing by a person er4ployod in the Public Service, contrary to section 270 and 265 of the Penal Code, Cap. 16, Vol. 1 of the Laws.

JUDGENENT FKIMA, AG, J. The apDellant, a driver with the Water Division of the Ministry of Watci" Development and Power, was seen siphoning some diesel oil from his employer's container into the container belonging to a village flour miller. The Ward Executive Officer who sat playing bao nearby arrested him on suspicion. He was sub- • squently arraigned, tried and convicted for stealing 12 gallons of diesel oil the property of his employer. He is appealing against 1 , conviction. - j It would appear from the resume of facts above that because eye witnesses saw the appelant dishing fuel out of his employer's container, the evidence against him was direct and original. Far from it 4 It is evident from the judgement that the .ppellant' S conviction was based on circuns -bancial and indirect :evidence. The recorded evidence, however, reveals that if there was any evidence at all, it was insufficient.to sup?ort a prima facie case, let alone to support the appellant's conviction. Not only did the court misdirect itself on the burden of proof but it based its decision on oonjecture and speculation. • Although the appellant exposed himself to suspicion by pouring the fuel from his employer's container, it should not be over- looked that he did this.as no one with a guilty conc3cience would do,in full daylight. His failure to produce a receipt for the fuel he bought on behalf of the

flour miller shoul.d not be taken as evidence of his guilt-* because he did produce a ::eceipt when he was insisted upon and given time. The petrol: attendantTs story that he forged the receipt in orde to back up the appellant in his predicament is so ludicrous and unlikely as to be outright false. The appellant said he bought fuel from this attendant with an I.P..O. on 29/1 2/71. . . , . ./2. . . • +.• -2- ,. # The attendant, obviously bent on making things look bleak for the appellant, said the appellant did not buy fuel with an L.P.O. on 30th of December, 1971. In their anxiety to inconvenience the appellant, the prosecution never saw this contradiction. Instead they glossed over it and went to inauire froi:.i the Water Office whether any L.P.O. was issued on 30/12/71. The investigating officer did not hinelf physically check the books to see whether a duplicate L.P.O. was issued in respect of the appellant's vehicle on 29/1 2/71 instead of 30/1 2/71 , At any rate whether or not on L.P.O. was issued to the appellant was besides the point. The issue was whether the appellant bought fuel as indicated by the receipt issued to him by the attendant. The only way to tell whether or not the receit was false was to find out whether the sales at the petrol station exceeded the diesel actually sold on the date Indicated.. If the receipt given to the appellant was false, then there

would have been a discrepancy between the proceeds of the sales and the quantity of diesel sold unless of course the attendant had himself tampered with the fuel. According to the evidence, however, no excess of fuel over proceeds of sales was shown to have occured at the petrol station of the attendant. And when the fuel belonging to the appellant's employor was measured, no shortae was revealed. The appellant's defence was, in view of this, quite reasonable Thus he could not be convicted on the evidence of a self--confessed accessory. By admitting that he was helping the appellant the appellant to cover up the offence, the attendant was admitting to be an accessory. His evidence had thus to be treated with extreme caution. Had the trial court taken time to reflect on the nature of the attendant's evidence it would not have failed to detect that it was so unlikely and inrobable as to be false. At any rate the attendant's evidence could not by itself have any probative force, It could at best only be of derivative value. In his judgement the learned convicting magistrate dismissed the appellant' s defence that he bought the petrol which he was seen decanting to the flour miller because, in his words, the receipt . . .. ... ... is no proof that he bought the 12 gallons from caltex petrol station and mixed it into the "With due ' respect, there is no better proof of buying

thththe production of receipt. How else could one prove that one bought anything? After all it was not for the appellant to prove anything. The burden always lay on the prosecution to show that the receipt was false and that fuel was actually missing and this the prosecution utterly failed to show. For reasons best known to itself and nb recorded, the trial court adamantly refused to acknowledge the pros- ecution's own evidence that no dies . was in fact found short after the appellant's suspicious conduct The trial court misdirected itself when it said It would not be difficult for accued during the interim period to put back 12 gallons into the drum to.nak up for the 12 gallons he had removed from the drrx.i and put into the three tins," It is a fact of life, judicially noticeable, that diesel is not the sort of substance that one draws from a well like water. It has to be bought. What evidence was there that the appellant bought 12 gallons of diesel after suspicion had been directed against him? As the appellant himself very rightly points out in his petition., there was no evidence that he had access to the drum to be able to replenish it. His conviction was therefore bad on the facts and in Law. What circumstantial evidence there was stood consistent with his innocence. In view of the paucity of in culpatory circumstances, his defence was quite reasonable. a a . a . a /3 •

a I -4- - 3 - He need not have been called upon to explain anything because no case was made against hiri prima facie. His conviction cannot he allowed to stand and accordingly his appeal is allowed. The conviction and sentence there of are quashed and set aside with an order that the appellant should be released forthwith unless he is held in some other lawful connection. "- L- / H. H. A. TIiIM/. AG. jUDGE. /Sinano,