George Gidion and 2 Others vs Republic (Criminal Appeal No. 46 of 2000) [2000] TZHC 474 (29 September 2000)

. . tbnJ-t. IN THE HIGH COURT OF TANZANIA AT TuIBEY4, CRD,iINAL APPEAL NO. 46 OF 2000 (ORIGINAL CRII'.INAL CASE N0~199 OF 1999 RUNGWE DISTRICT COURT DISTRJ9T AT TTJKUYU)

1. GEORGE GI:JION 211 AUNT JOTH.A0 J. lTILDl WILFRED ) ~ •••••• •:• •• , ••••• APPELLiiHTS ) VERSUS THE REPUBLIC ••••••••••••••••••••. • •.•. ! •• RES?OI'TDENT JUDGHENT ·-:· The appe11ants-·stood trial on a ch·arge containi11c;. three ·. counts as follows: The first and ·second accused were cll_rgcd with the Penal Code offence of burglary c/s 294 and stealing •· ~ .c/s-.,265.. The third a1 ,.rL~•ellant was charee'd with receivin.g st.olen ; . ' ·,,,property c/s 311(1)" ot·th~--Penal Code·. :- It was the prosecution .. case tha:t one Julius r,rulile3e~ (PWl) ·• ·- ! . ; . . . vrent to sleep on the nir;ht. of. 27th :November, 1999 G.nd, -without·: -. . . ' . . knowing what was hp~.1ening around him, woke up on the -morning of 28th November, 1999, to only to iscover that his house had been burgled and an assortment of pieces of personality having been stolen therefrom. " , l They included one bag in which he had I kept his money, a sum of slis.50,000.00. As expected of pesQ4 . . . . :..· . ; , . ; .. ~~ .. t . ' '.

• who· is in suh a -ircumstance he reported the incident ·tq· the· ·· authorittes starting with the Ward Executive Officer and.then to the:··Police. Then shortly thereafter he saw one Kisa !wamafupa, who WS neither·chaged nor called as witness, carrynq_ a bag a e •• similar to my sto"ien one ••• 11 • The only evidence against .. : ···.·. •••• /2 . .

2 the appellants, therefore', was that the- bag found in the possession of this I{isa.)VIwamafu:pa was similar to that which vvas :Stolen from the i .. , .. complainant's house. Obviously such scanty evidence· ·could not e stabli __ h_ even a E_rJ11ls.l.2ie case against the appellants. If, as -· tho ap])ellants are complaining in :their petition of t:::;i1)eal, th~ • • a. •. • . . • •' convicting ·court he.d given serious.and careful consideration to . . ' this eyidence it conld h3ve held tho.t the appellants L.ad no case Now how did this Kisa Ivlwamafuph ·come· by the b~~- }3lle was found ' cai:·rying? I ·. . It· is common ground iμ the defence that the second appellant .. ·.:· ; swore· that he •iought the bag at Kye la. He decided to se 11 it when ,' . lie -'fe 11 short of mo:ne y • He asked the. second accused to do so for him. ' . . . . ~ ·.'As-agreed the second nccus.ed looked:for and found __ a buyer, the third accused, who bou~:?:ht it without any groun.d upon which she 90\1ld have suspected that it was stolen property. It was the ·' tllird accused who lent it to the said Kisa Mwamafupa who is a friend of hers. It seems to gie -~lJat the major consideration which infiuenced

• .. _ the trial court was thcrt the first accused failed to· produce a (I . cash sale receipt as evidence for his ha-ving purch::?.sed the bag • . -When cross-examined on this he said the Police did not require him .to produce it. Who 1 then, as be tween the acc"1.Se d 2,nd the complainant had to prove how he came-by the bag and th2t it· belonged to him at the exclusion of everyone else in the world? It was, as by law provided, the duty of the prosecution to provide nn ansvver to that question in the form of probati VG evidence· that the bag belonged to the complainant beyond any ree.sonable doubt. This· they did not do because the compl8inant cmild not l::..imse lf produce a receipt for the bag. Why should,- in that case; the accused be required to do so? As Lr,. Mbago, lenr1?-od Principal ••• /3

3 State Attorney, has correctly subrr~tted, the trial court shifted tho onus of proof ,:from the prosecution to the defence. The ap:pe llants were litor£lly called upon t_o · prove their i11110cence. That, no doubt, was an error. Mr. Mbas'c,, therefore, s1,oke for justice when he informed the Court th£:t· the Republic declines to support the convictions and the sentences that vrere im;?osed r,n the appellants .. I entirely agree with him. Upon the foregoing considerations the appeal is allowed. Co:nvictions are quashed and sentences are set asid_e. The order by which the bag (Exh. P,.l) was to be handed over to PWl is quashed with the direction thcit the said bag be restituted to the third appellant who bought it from the second accused who actt ➔ d. as a proxy for the first accused in the scle transaction. 1st 2nd 3rd IKr. Delivered. JUDGE .Ap:pe llant: In PGrson Appellant: In Person Appellant: In '.!)or-son Boniface 1 State il ttorney: For Republic. Certified true copy of the oriinal Judgement. . . ' t ,,_ .·-.....t - .• S.A. N; ··wambura DISTRICT REGISTRAR l I !JlBYA