19890519 TZHC Dar es Salaam

/ "\.A '"- :r j) '':) :.-V1 ( L ' :'~:J ) j I_ , IN TTIE IIIG:I COURT O:F TA:JZAlUA AT DAR' ES, SAL.A.AJ1 APPELLATE JURISDICTIOl'Y TIIGII COURT CRIHINLL APPEAL NO., 1/C9 ORIGHJ1\.L CRU1IHAL CASE HO a 1091/86 OF T:W:: DISTRICT COURr:I.1 OF ILALA DISTRICT AT~ KIVDlCONI SALEIJE ALLY &_3 OTl:ERS •• oooooooo••········APPELL,.'\lJT (ORIGINAL ACCUSED) Versus T~'.J'.; U1JITED REPUBLIC •••••••••••••••••••••• RESPOI'YDENT ( ORIGHTAL PnOSEC1JTOR) JUDGEI~HT !,1NZAVAS,J .IC.- In this appeal the appellants were jointly charrrod with and convicted of store-breaking and stealing c/s 296(1) and 265 of the Penal Code and each sentenced to 5 years ir.iprisonment under tl1e Minimum sentences Act, 1972~ Dissatisfied by the convictd.on and,-sen-tence they have n,ppealed to this courto Acgv.ing against the conviction Mr. Mchora, learned counsel for the appellants, su1Jmi tted t!.1at t;1e learned trial magistrate erred. in convicting the appellants. It was the learned counsel's arcurnent tl,a t the evidence leo.ding to the finding of guilty was w1101ly circ1.11'1Sta,'1tial 9 and t.:.iat the circ~unstantial evidence was not such as to exclude all other hypothesis that the acCL'.Sed could not have been guilty of the offence charged. It was also areued that tl~e trial magistrate erred in sb.iftine the burden of proof to the accused 9 and that ~h~ judgement sl>owed that tt1e learned trial mac;istrate was

of the convicting type. Alternatively but without prejudice to the foregoing tl1e learned counsel sullmi tted that tLere was undispt-:.ted eviclence t'.w.,t there was an aperture tl:..ro~h which the t:1ieves entered to c;--c5~ motor spareparts from -the store and. that -· -- the aperture was tl:cre l:,efore tJ\e comr:ri.ssion of t!1.e offence., . ' ' That being tlie evidence it was argued tlmt there could .. the:tefore be no 1:lreaking in law of which the accused could •, . I •}- . · · ·-; · · ♦ have been convicted., In support of this argument ,,. the ,court ·was referred t-· r . ;._. ·.t • . .,_-.,- :. ; :':~-;- -~~-:- ~J..-·. to decisions of tllis court i~ PETRO S1U,iSON_' v· ~ (1970) ( *_.; . _,;J ' IICD 35 a,,'1d RM,1rn:.-1Jr BAKA.RI V R (1.970) ITCD. 90. !. -, . . ,' ' .... - 2 - From tl1e evidence tendered in the lower court there was no argvnent that motor car spareparts were s,colen from Scania store at Pugu road ~n the night of 30/5/86. Equally it was not disputed tl::iat at tte material ni{;ht the appellants were the watchmen guarding the store. There was also evidence that the watchmen worked in shiftso The appellants having ta.ken over the work of guarding the store ~ from other watchmen. In convicting the appellants of the offence of store-breaking and stealing the learned Principal district magistrate said inter alia: "Their (accused's) silence particularly on

the allegation .that some foot ma,ry..s were seen on the door leading up to the roof lends inference that they had known what had happened------in other words these · marks mu.st have been left there after they had taken over ;... - - - Accused's argument that on searching them they were found with nothing is not enough per se to show that they did not steal". This was clearly gf0,ss misdirection by the learned Principal district magistrate on the question of burden of proof. As it was . held by this c·. n:~t in FANlJEL KIULA v R(l967) IICD 362 11 i t is not necessary to accept the evidence of the accused in order to find him not quilty. That this is the law on the question of burden of proof in a criminal charge is also evident from the decisions in MOSTII RA.JADU v R (1967) IICD 3Q4 and EENRY IBRAIIIM v R(l972) IICD 178. Coming to the question of circumstantial evidence there was I agree no dispute that the appellants were on duty on the night of the theft but this alone could not be sufficient evidence to the allegation that they are the thieves. Other people may have managed to steal the spareparts despite the presence of the watchman. It is a pity that no efforts were made to identify the foot marks seen on the ;the door leading tct..roof. IIad the foot marks been identified as those of the accused persons or an;)' of them their guilt would have been proved beyond

reasonable doubt. There w~. ,.~ a lot of suspicion that the appellants were the thieves but ~~£earned trial magistrate will no doubt agree w.:.th me on reflectio~pioion no matter how strong · cannot be ·the basis of a conv-iction in a criminal charge. The law is that to convict an accused on circumstantial evidence the circumsta.."l'ltial eviden0e must be incompatible with any e:;..-pla....-1ation· other than the guilt of the accused., That this iB the law is clear from many decisions of this cot.1.rt and the court of Appeal -see the decisions in GER.ADI v R(l972) II.C .Do C7, SIMON l'.fLJSOKE v R(l958) EA.715 and S.AMWEL v R (1972) II.C.Do 105 to quotte but a·few of the decisions on this point. '. -3- ♦/ l... • ~ o r the above reasons I agree with the learned co1.msel for the appellants that the convictions should not be allowed to stand.· The convictions which are apparently not supported lJy th~ Republic are accordingly quash8d and the sentences are hereby set aside. All the appellants to be released from custody forthwith unless they are otherwise law.fully held. ~~~- N S. , VAS O JAJI N'GOZI DAR ES·SAL.AAM 19/5/89 ' /, ffl[i