Hussein Omari vs Director of Public Prosecutions (Criminal Appeal No. 46 of 2000) [2000] TZHC 271 (20 November 2000)

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was reported with the police and a search for the culprits was quicki mounted0 In the process some of the culprits were arrested and eventually charged in cout0 •Alo' 9 in the course of investigations 9 it was alleged that some of the accused persons made confessions implicating other accused persons0 In the light of one such confession by one accused person it was revealed that some of the stolen/robbed proper ties were within the precincts of the compound of the appe llant's house0 On visiting this compound a number of items were discovered buried under the groundu items which were eventually identified to be among those stolen from WI. In the appellant t s defence he admitted the stolen items being recovered from his premises. His defemee, howver, as that the items were brought t9 the premises by his so±i 'one Sheran who was not arrested, and charppd Plongnqif9e tho other accused persons. In convicting the appe]ant 9 th lernd. trial District Magistrate was satisfi that the evidence against him was cogent mainly'.;on account of the fact that.sonie of the stolen items were recovered from his rremises0 The trialMsgistrate further fortified his argum' that the appellant had earlier C •

lied to the police that the mound of earth from where the stolen items were unearthed was a grave0 In the reasoning of • • the Magistrate, in so lying the appellant was hiding a fact that he must have been a party to the crime and hence his reluctance to. ay.. exactly what was in the mound of earth. Mr. Kinabo learned advocate has written and filedsubmi- ssions on behalf of the appellant0 On the other hand 1 1 1'r0 Neema Joseph learned State Attorney has likewise written and filed submissions on behalf of the respondent Republic in which it is clear that the Republic is in support of the convi- ction0 Regarding sentence the learned State Attorney, however, is of the opinion that if this Court upholds the conviction. then it could exercise some leniency and reduce it0 The State Attorney did not, however, say whether this could be possible in an cffence whose sentence is the statutofy minimum0 In the petition of appeal there are two main grOunds of complaint namely: The Magistrate ezred, in holding that there was sufficient evidence to prove the offence of Tobbery contrary to section 285 and 286 of the Penal Code beyond reasonable doubt0 . • . The Magistrate erred in 1i by shifting the burden of proof to the defence0 S 0 0 0 0 /4

Lb In arguing the apal, learned counsel have chosen to do so generally0 I too propose to dispose it of generally0 Addttedly, the crucial issue is whether the offence cha rgod was proved beyoth reasonable doubt0 And noedless to say, it was upon the prosecution to establish its casa against the appellant beyond reasonable doubt0 It is common ground that the evidence against the appe liant was circumstantial0 The law on circumstantii evidence has been well stated by learned counsel i0e0 To support convi ction the inculpatory, facts must be incompaticablo with the innobence of the accused and incapable of any other reasonable explanation upon any other reasonable hypothesis than that of his guilt0 In other word.s circumstantial evidence is esse ntially a set of facts which when put together would lead to no other reasonable explanation other th:a. that of an accused's guilt In the instant case it cou.J.d. not be eafely said end. concluded that there was enough circumstantial evidence to ground a conviction The fact that the stolen items were found in the appel ant? s premises did not necessarily mean that the appellant was responsible for stealing and their 0 0 0

1 1 "burial" therein9 After all, there ws the undisputed evi dance that the appellant's son (Sheran) was identified at the scone of the robbery0 If so, the possi1ility that he (Sheran) was responsible for their "burial" cou1_ not be ruled out easily0 There was a strong possibility that, the appellant knew of the "buried" items but this was no proof that he par ti'cipatod in coimitting the robbery in question0 Yet, also, there was the suggestion that by lyng to the police the appellant must have done so to conceal.his involve mont in the crime0 With respect, even if he lied, this should not have been taken as conclusive proof that he must have par ticipated in the crime0. People lie for different reasons0 It was still possiblb that he lied in order to save his soni In deed this is where I agree with the observation made in a pas sage cited to me by Mr. Kizabo in the English case of Rv LucasA 11 ER 1008 that even if the appellant had lied that coula not have supplied sufficient corroborative evidence to link the appellant with the off6nce0 In Los case it was held:.- "To be capable of amounting to corroboratiofl a lie told out of court, must first of all be delibera secondly it must relate to a material issue. Thirdly the motive of the lie must be a realization of guilt, fear of the truth000000000people someti mes lie, for example in an attempt to bolster a just cause, or out of shame, or out of wish. to conceal a disgraceful behaviour from the family"0

• 1 .6 In the instant case, and as earlier stated it was still p possible that the appeilan.t lied in order to conceal the disgraceful behaviour of his son, or out of shame for what his son did etc0 In the end resuit, the appeal is a1lowed. conviction quashed and sentence set aside0 The order for compensation in so far as it concerns the appellant is also set aside0 The appellant is to be xoleased from prison unless he is law fully held therein0 Jc H. MSOFFE JUDGE 15/11/2000 Judgement delivered in Qhamhcrs this 20th day of 'Tovember 2000 in the presence of Mr 0 Kinabo for ape11ant and in the presence o Ms-Ni1atwa for respondent0 / A C NYERERE /> 1/ •: :. -. .. DISTRICT_REGISTRLR .20/11/2000 L0