19850517 TZHC Dar es Salaam

'.;. IN THE HIGH COURT OF TANZANIA .AT DAR ES SALA.tiM A-PPELLA'l'E JUII.ISDIC'r ION HIGH COURT CRIMINAL APPEAL NO .89/84 ORIGINAL CRIMINAL CASE NO. 67/1983 . , OF THE D!STRICT COURT OF BAG.tiMOYO DISTRICT. M BAG.AMOYO Before: K.o. MOHJ\MED Esq., District Magistrate Phu.llip Machia Sanzage •••••••••••••••••• Appellant (Original Accused) versus THE UNITED REPUBLIC ••••••••••••• •, ....... Respondent ·(Original Prosecutor) JUDGMENT Mkatte, Me J. Philipo Machia sa·nzage was sentenced to a jail term of five years on being convicted of stealing by a person employed i~ the Public Service c/ss 270 and 265 of the 'Penal Code. He -es eppealed against both conviction and sentence. In this case it h!:!s been established and 1ot in dispu.te that the appellant was an employee of the Mlnistry of National Education and was wor'<ing as a personal secretary to the Prineipel of .. MANT'EP Institute, Bagamoyo, at the alleged mate ti al ·time of theft. ·1t was. further est- ablished and was not in controversy that the a:ppe·UaAt was on di verse dates handed over some typerwriters .. On th~;l!~ 1 e2·he was handed over 22 typewriters on issue voucher Ifo.6/425978 aad befol'e that on the 28/2/81 he was handed 7 typewrit9rs; ~ne typewriter on issue voucher No. 6/185522, two typewriters on •issue voueher. No. o/185523 and four typewriters on issue vouc.h.er No. ;6/1855.24, ~~e totel number of typewriters issued and handed ove'.r to the .appellant as pe·r established evidence on record is 29. The Issue Voucher Books t6rieerned were , , tendered as exhibits befor~-~he ttial court. ··Issue Voucher Book No. 6/185501 ..... · 6/185550 was tendered ~s exhibit,•''f>l". and )::Ssue Voucher, No.' .6/4~5951 - 6/42600C. was tendeJred as exhibit • . i. 11 F3" ,. : The issue vouchers wer~ .not enclosed in the appeal riacord but as th~ i~s~e and r~reipt of the. type:wri ters are not ,in disput1e there is no ·.harm cl'ecasi◊ned. ' VbU~~ r l ~· t . ~- ', . • t~i--i c:~·,.·f i nt t ........ .•. , \~, . • 4'_, 2 In fabt non receipt of the typ~wtiters on the dates mentioned on the issue vouchets is riot one of the grounds of app~al. The finding of the trial court th~t the appellant did receive the said typewriters is founded on the strong evideni::e of Thobias Jiima Ma1<al.s; P.W.1 who testified that he handed the typewriters to the appellant. The finding is furthet strengthened by the appellant's own defence in the lower court arid by the appellant•s first g;ound of appeal. In his .. defence as well as in his grounds of appeal the appellant does not dispute receipt. He admits being handed over the said typewriters ·but goes on to argue that he also in turn ha~ded them ovs.i' to th_e principal of MANTEP Institute one Jac 1<son M~anga, D. w. 2, when· he was going on vacation. The receipt of the typ~writers was strongly established and the learned lnagistrate's finding on the poi'.ilt was well founded. The Principal o'f MANTEP IntHi tute, Jac'~son Mwanga, D.W.2 was called at the instance of the accused. Why did the prosecution drop out this important .. witness is not clear and the whole record is silent. Be it.as it may, D.W.2, admitted to have been handed over office items by the appellant on the 11.6.83 by meanB of handing over notes exhibit D.III. D.w.2 went on to swear that.he was handed over many thing~, the electrie typewriter arid one adding machine, excepted; The handing over notes, the original copy of which is exhibit· D;III shows that there is no record of the said eleotric typewriter no~ the said adding ~~chine. Th~ electric typewriter~ to be more precise the Olivet type~ri ting machine· serial ·No. 263541 is one of the typewriters listed in the charge sheet. The accused, however, during his defence produced a photostat copy of the handing over notes, exhibit D.II.· On page 4 of the list containing the office equipment handed over to Jaclcson Mwanga, D. w. 2, the electric typewriter and the adding machine is one among ihe many articles handed over. Exhibit D~II is silent on ordinary typewriters, about which the appellant contended in his defence that he had handed the same, the ordinary typewi ters·, to D. W. 2. The said D. w. 2 denied 'r nowledge of the photo stat copy of handing over notes exhibit D.II. D.W.2 went on to reply the appellant that the signature of the person handing over and of the person being handed over is done on the certificate of handing over and not on the list of the things handed over, .... /3 3 This seems to have been an: ans~er:to what appears on page four of the list ·of. things on exhibit D II.· There' is on that page purportedly ' ' the signature of the person handing over and the person hand~d over, DW 2 refuted the photocopy and the trial tourt also r~jected.the same. 'The court similarly rejected a photostat copy of handing over notes, exhibit DI~ in which the ai~ell~nt alleged tb have handed 22 typewrtterj to one leciurer_. of Man'tep Institute,. Bagamoyo by ~ name . '' _, ... of Lawr~nce Laurant Kibatala, P.W.3. The learned magistrate rejected the. two photostat copies on the grounds that the accused, now. the appellant, .failed, although he promised to so do, to produce the 9riginal, duplicate_ot triplicate copies of the said handing over notes. · I do rE:ispectifully -agree with the learned m?gistrates rejection of exhibit DI and D II on ~he reasons ad~anced except I would just li~e to point out that the appellant was pot in a position to produce the originals of the handing over notes because the same would re~ain ~ith the persori handed over as is shown in this case by D W 2 who produced the original handing over notes, exhibit D III as evidence of what was handed over to him by the appellant. In this case the least the accused was expected tb do was to hand over the duplicate or triplicate of the handing over notes whence he produced the photostat ~opies of exhibits D.I and D II and not otherwise in order to be comfortably accommodated within th~ ambit of section 67 of the Evidence Act, Act No. 6 of 1967. Besides, like in exhibit D II, th~ person alleged to have been handed over, PoW.3, categorically denied to have received the 22 typewriters from the appellant on the 2.8.82. He also denied the signature of the receiving 8 or incoming officer to be his. P.1r1.3 further testified tha1i,J1 s in _anyway not suppossed to be handed over the typewriters. The PW 3 retorted while replying the appellant that how could the appellant hand over the said 22 typewriters on the 2.8.82 while he himself,~- the appellant, was handed over on the s~me 2nd day of August, 1982 as shown ori the issue vouchers~ The learned magistrate believed DW 2 and PW 3 that they were not handed over the typewriters by the appellant. I do not differ with his finding on the point. Had the appellant produced the actual duplicate or triplicate of the exhibits DI and D II it would have been easy, at least in the circumstances of this case, to compare exhibit D. II and the duplicate/triplicate with the original exhibit D III and to discern any discrepancias if any. . ... /4 4 It is not easy 1 as the appellant would have liked it, to detect ., any discrepancies or similarities from a photostat copy of an urucnown origin. As to exhibit DI the very existence of the act of handing over is denied and hence PW 3 could not produce the original handing over notes. The appellant could at least have produced the duplicate or triplicate if, a.a· observed by the trial court, the appellant's allegations were true. A note of caveat before I proceed. The duty to prove that the defence is true was not on the appellant. the I will come toljoint later when I will discuss the question whether the accused raised a reasonabie doubt. At this stage I would just like to point out, that it has firmly been es.tablished that the appellant d ' was duly handed over 29 typewriters as per issue vouchers tendered:out of which 20 are missing. It has also been firmly established that the 'appellant did not hand ~ver the said typewriters to be more specific, the said 20 missing typewriter,to any other.person. That the 20 typewriters as listed on the charge sheet are missing was not in dispute. The audit;:ir, Saidi Alson, PW 2, s:trongly affirmed that the 20 typewriters ~ - pne e.lectri c typewriter and 19 Lin"'a ( / 98 typewriters are missing and todate are still missing. The lGllSs is the essence of the present proceedings which are now on appeal level. After upholding the above findings of the trial court an i~portant questio_n remains whether the accused is the person who stole the 20 li'st typewriters~ The whole case and its final outcome revolves on this question .... whether the appellant is the thief. T.qe trial court. and answered ·the question in the, affimati veL_accordingly convicted the appellant. The learned state attorney for the Republic, Mr. Simbakalia, supported the conviction. The attorney supported the magistrate/a finding that the appellant failed to prove that he had handed the typewriters to PW 3 and DW 2. He wtnt on to point out that although the appellant rightly argues that he was not seen by any person carrying the typewriters yet circum·stances show that he is the ttiief. The attorney ., ,, kindly directed the attention of thia court to the decisi.;in of ~.learned brother EL Kindly, Ag~ .~ •. then, in Mw·i ta and 2 others v. R.' 1971 H. C. D. No :24 in which case he cited and followed Simon Musi 1ce v. R. ( 1952) ( E. A. 715 wherein, i~ter alia, it was said: ••••• /5 5 · "Where the evidence is exclusively circumr ,;anti al, the court must, before deciding upon co·.viction, find that the inculp_atory facts are !_r ·jompati ble with the innocence- of the accused anr~ incapable of explaination upon· any other hypo:chesis than the. guil tz of the J2£TS0fl char~ed" ( underlining supplied). Indeed, it is not enough just to find that the ·accused's defence L; ·not. true;. That is so because while the defer,ce may not be true thr3 ~oircumst~ntial evid~n~e may as weil not be ~onclusive as to the true facts of the case. That is one of the dargers of arriving to a conviction on bircumstanti~l evidence me:ely on the ground that tho · aecused is not telling the truth. The learned state attorney befo, e a.r;:d after citing the case of Mwita and 2 others v. R. above didn't go on to point out whether the inculJatory facts adduced by the · P •pellant ,,re incompat: Jl·e with i.nnocs.r')e .__,;_ the appellant and inr '-Ile ..,/ explaination upon any other hypot :1esis than the guilt of the accused/appellant. The triAl magiir~rate also did not discuss thf r·oint. I.r his judgment the trial maei~trate aftgr being satisfied, (i) ~hat· the .appellant r~ceived the 20 typewriters (ii) that the appella.r..t tendered false documents in his defence (iii) that the appellan -~ did not harid o~er the 20 typewr~tere to PW 3 or DW.2 whom he prefe: s to call PW 6 in the judgme~t and (iv) that th,e appellant failed t · ,.,.,.,,.,~,1ce the twenty typewriters or to- inform their ;whereabout; believer· that the appellant stole them. W;i.th due respect I find that the findings and facts as they stand, wi1hout more, do not lead to the ir··esisimtible · inference of gui 1 t. Is the:'ie any more circumstantial evide,,ce to warral\t the conviction to stand. I am very mind:ltul that ,u. appeal court should not sustain a conviction on the basis of its own i~iependent review of evidence not cons.idered by the tri c'·l court, see: Moshi d/o Rajabu v. R• .12..£L..!!£.~l!~..J84. I am, how~ver, also mi 1dful that II.An appellato court is in BiS good a position as the trid court to draw inferences from circumstantial evidence." - ,ruma .Ali b~):_ ~_a_i_1t v R 1967 - . HCD No· 383. I have careful]~y ploughed throug~1 the ev.:cdence on record and I have not come to any c1lose linlcs in the, chnin which lead to ar i 2esisti ble conclusion of i:;1e appellant' o ©-l::-:11 t. •... /6 6 1he totality of the evidence ort reco~d shows that.ihe ... typewriters could . •\' li'' have been stolen by the appellant or by the_ appeilaht and others or independently by others except that the acctised was accountable. The appellant was not the o.nly pe_rson with access to the typewriters which were being used in a class by many stud~nts. We haver one exPlaination, ' .. . a capable explaination, that a person or persons other than the appel- lant could also have stolen the typewriters on di verse occasions.. I find that this hypothesis is very probable because I cannot envis~ge the possibility that the appellant could a~l alone haie stolen so many typewriters without being detected. Put it this •W¾Y if the appellant stole the 20 typewriters·at a go then he must have used somekind of a vehicle. In that event it would have been easy to notice it either by way of ·actual seeing him or by way of feeling the· 1oss of the number of the typewriters on the following cl ass. In tl1e alternative if he was stealing one typewriter at a time one would believe that he could not go up to twenty typewriters unoticed •._Ctherwise ·the, alleged_ militia-men and watchmen at the Institute are useless. There is on record some evidence which was given at the la~tim}nµte by lt,; ri.w.2 that the appellant wrote a letter to the Institute's watchman,_ exhibit D IV in which it seems the appellant agreed to hav_e stblen the electric typewriter. Ex:hi bit D IV i_s a _photostat of the alleged lett~r. D.W.2 told the court that the original letter was given to the police who was investigating the case. In my view the admission of exhibit DIV is highly improper. In this case the alleged watchman was not called as a witness to· show that he got .the said letter from the appellant, Secondly the appellant was not given any opportunity to cross....;examine DW 2 on the letter let alone seeing it and thirdly thefe is rio evidence from ~he investigating officer that he went to investigate the contents of the letter. In the letter the appellant is alleged to be telling Ofle Tobias that the electric typewriter is at Shinyanga. Why was that Tobias not called. Cn the wh61i I am satisfied that "The evidence of the truth of the contents of the letter was inadmissible (~nd equally) the evidence as to the possible source· of the letter was doubtful in regard to its admissibllity." Kimweri v. R (1968) ~E.A. 4:22 ... /7 7 There is also on record so::-10 c:."-:L.,~:;;a from B. 9255 D/Sgt Nassoro, P.W.4, the police officer who investigated this case that the appellant told J;'W.4 thnt one typewriter . L exclusive of--the other 19 was at Dar es Salaam 1n the house of the appellant's relative. That seems to have been on the 17 /9/83. Prior to that,·however~ the· appellant,'bn the 16.9.83 had told PW I and P.W.2 that the typewriter was with the Principal. The appellant in all looked not creditw0rthy in his.statements. But as aforesaid the accused's lies cannot close u~ links in ~he chain of events in this_ oas~ and therefore it would be unsafe to ~omeito an irresistible conclusion of the accused's guilt because the alternative hypothesis that persons other th~n the acc~~~d could also steal has not been excluded. In arriving to this conclusion I am strengthen by the decision in Samson Daniel v. R. 1234 EACA 154 wherein it was held that " ........ in dealing with it (i.e. ci~cumstantial evidence)· pne must most carefully test each link in the chain, and i!', in the end one is not led to the irresistible conclusion of the accused's guilt then must one reject the whole chain and discharge the accused person." I opine that is th~ situation ~e~u. In the total circumstances of this case it may be noted that the appellant was very negligent in that he failed to report the loss gradually. However, the same can be said about P.W.3. the lecturer who was dealing with the typing section and the same can be said much more about DW 2, the principal who was handed over the office equipment ·by the appellant on the 11th day of June, 1983, per exhibit D III i.e. form S.F~l7. On the said form it is clearly written on-the Certificate of Handing over Stores that the incoming office·r must certify the correctness of the list of the articles handed over after comparing stoc~s on hand with the legder balan~es otherwise the incoming officer must, if he finds discrepancies, certify that he finds the items to be: "(b) Correct with the exception of articles shown in the attached schedule of discrepancies (Form S.F.14). With due respect, the principal, DW 2, seems to have noted no discrc- r ricies when ta~ing over on the 11.6.83. • 0. 0 /8 8 ~It seems h~. might not. have adhered to the procedure of comparing the .. ' stocl.c on hand with; the balances _actually received by the appe_~lant. Had he done so I am sure he would have de'!i_ected the discrepancies and would have complied with the requirements of fprm S. F. 14 . which he w9uld have attached to S.F. 17 exhibit D III, Tpe qetection of the discrepancies, if there were already in existence ~het1·, woulq.- hav~ been mada before the advent of the a~ditor in S~ptember,. 1983. All \he aforegoing discussion goes on to show that it. ,s also pr6bable that the ·1oss of the typewriters might have occured on or after the.:.~-:- llt.f{, 6. 83 the date of handing over but before or op 16th, 9. 83 the date of ·au.di ting as none can verily _affirm . the dc=ites or period of the loss •. . ·. : All' in all the circumstances do not lead .to an irresistible conclusion'that the appellant is the thief of·the twenty _typewriters! The result is that: this appeal.is· allowed and.the conviction is quashed.· The sentence is set aside with aii order that the appellant be immediately released unJ,.ess otherwise la.\~:t'.µlly detained. ~ H.J. Mk-atte, Ag. J~ Read on 17 /5/85 Before H.J •. Mkatte, Ag. J-. Miss Khaday for MI'-•. Simbak.ali.a ,, State Attorney for the Republic. The Appellant. - Present-. H.J. Ag. J •