Julius Zefania vs Republic (High Court Criminal Appeal No. 18/1999) [2000] TZHC 483 (16 October 2000)

IN i.lHII Ul'ailt fjl&t#.utll 11111 IJ.'.i.tt•illtw~ AT IRINGA ----·-·- HIGH COURT C1UMINflL i.PP:i.!li .. L NO. l.8/J..999 0RIGTIJi.L CRiliiINiL CJ.SE N0 .. 223 OF 1998 OF T"tlE D/COUH:r c:r SOiGEi:. DISTRICT .i'l 1 S0KGiA Before: G.:fio Chabruma, Esqo Prine.- :>.,-Magistrate JULIUS ZEJ.i'.iNI.i~ eoC>OOQ,O•Oo•···do,QOO Versus: T'.diG REPUBLIC ~ o· o o ., • ., o ,. .•• o o • o • • o , RESPONDENT . J_ VD G iVl ENT The appellant was sentenced to five yee.rs following his conviction on a charge of storebreal{ing and stealing contrary to section 296 (1) of the Penal Code. This conviction was based on circumstantial evidence. kccording to Marrid to i ✓ Insp11 the prosecution case Euphasia Lugome (PW.5), who is (PW!l) Lugome[testified that ;sh-bought ti~ber worth Shs• ' 16,oo.oo from Remdio Mktnga_ (PW.6) seine time in Februaryt 1998 and stored it on her compound. . ThG-y found t\vo pieca of timber when they woke up on the morning of 9th Heil 1998, .. ·.t v.bout 8000 aom •. PW•5 sighted the appellant carrying timber which she claimed to be hers. So she trailed the appellant to the SIDO complex where the timber w0re delivered to Ernest d Kifaru (PW.2), a carpenter, who -!as contract.eLto make a bed far the appellant at a charge of Shs. 4,ooo.oo.. fo his defence the appellant swore that he bought the timber from one Omary on 8th May 1 1998,at the Bus. Stand whereupon he asked the second accused to assist him to carry them to the carpenter. He said he raised the Shs. 4,000/= fo1• \·Jhich he bought the timber from ::. Vera;i.., magistrate The trial 1 :convicted the appellant because the person called Omary was unknown, probably to the trial court. That the appellant had bought timber .; at a cost of Shs. 4,000.00-without the knowledge of his parents. These circu- mstances made the learned trial magistrate disbelieve the defence. 2

Obviously the trial court was moved by speculation and conjectuz,e ~ there is no proof that th0 said Oma.ry is unknown; unknown to whom? Secondly, n:rne of the appellanUs parents w&.s sununoned to testify; a conclusion that the purchase of the timber by the appellant was mr.::.de behind their backs is sheer conjecture. It hs, in fact, occurred to me thc:.t the appellant was convicted by reason of what the trinl court t0lieved instead on probative ev1dence. ;.ccord.ing to trials in proceedings of a criminn.l nature the onus to prove the guilt of the accued person lies on the prosecution. ;-.rid, in case such as this one in which the subject of the crime is commodity of general manufacture, the complainant must give details of the object which leave no doubt whatever that the property in question belongs to h~n cir her. The complainant had to give marks of identification which a.re peculiar to him ·alone. It does not suffice to say that these pieces of time are mine or that I bought them. Someone else m&y buy pieces of timber of simila.r make. I am satisfied, therefore, that the complainants did not prove beyond any reasonable doubt that the timber in question belonged to them to the exclusion of others who could lawfully own pieces of timber with a;."'1. identically general outlook. I have given careful consideration to submissions in support of the convictions as made by hr. Merqa.ndat learned State 1,ttorney. I am not persuaded that he may be·right. ,w.though PN.l claims4 as learned counsel submits, that the appellant admitted to have stolen his timber, this man is an interested party. His testimony must be considered cautiouslyo Learned Counsel's contention that the appellan.t made an admission of theft is not borne out by the record. Furtherf the eontention that the appellant confessed to·No. E,4432 P.c. Gasper (P.W.4), if true, constitutes testimony which contravenes the provisions of section 32 fl. (2) of the Police Forc.e Ordinance as repealed and replaced by seotion 32 A (2) (a) of the Police Force Ord.inance which required, such interview to be recorded and inter alia to be signed by the suspect. To that extent the testimony of PW.4 was inadmissible and ought not to have been considered.-

• 3 Mr. Manyanda further submits that the testimony of the second aecused and that of his witness, hSha Bakari implicates the appellant. I have examined trieir testimony; I ca11not. see how this contention could be justified, because all th0 two p0ople said was th&t the appellant asked the second accused to carry his timber to a carpenter. Obviously that dos not constitute '"· e.d:nission of guilt :i.n relation to storebreaking and thef• I iiOuld.; frp111 .the above considerations, allow t..11.e app~. The appeal is allowed. Conviction is quashed; sentence and order for restitution of the tiniber t? Pi'Jel and PWo5 is set asideo I I certify that this ia a true copy