Hassani Haridi vs Republic (CRIMINAL APPEAL NO. 49 OF 1996) [1999] TZHC 183 (28 July 1999)

•· IN THE HIGH COURT OF TANZANIA AT HTWARA APPELLATE JURISDICTION CRIMINAL APPEAL.NO. 49 OF 1996 ORIGINAL CRIMINAL CASE NO. 141 OF 1996 OF THE DISTRICT COURI'.QF MMASI AT MASASI BEFORE: J ~B __ .C., :MASSITO, ESQ., DISTRICT MAGISTRATE HA.SSANI HARIDI •••••••••• APPELLANT . versus: THE REPUBLIC •••••••••••• RESPONDENT JUDGMENT

KAJI 1 . The .appellant HASSAN HARIDI was charged with and •onvicted of theft c/s 265 of the ~ Code Cap 160 He was sentenced to 5 ye.are. imprtsollment. He was aggrieved with the conyiction and sentence. - , ... ,.•,•', ·Y} !:f. I ·: , It was alle, by the prosecution at the trial that on 9.11495 at t 7 AM, PW1 FATIJMA d/• IIDSSEIN left her home for a J1earby mal.'ket. She J..eft her 3- tins of paddy intact. When she returned later she found the said 3 tins of paddy missing. /ul. lllldis-cl.osed person told her that he had seen the ..q>pell®t s"3.l that paddy. PW2 RAJABU SAIDI and PW3 JOYCE <l/o .AUIEINE also toJ.d her that they had seen the appellant looking for buyers of some paddy he had. 'The .appellant was arrested and charged with st€aling c/s 265 P.C. In his defence the appellant gave a total denial. The trial Court found him guilty and convicted him as charged and sentenced him to 5 years imprisonment. In his grounds of appeal he insisted on his innocence. The learned State Attorney Mr., 1'1asaju who represented the Republic at the hearing ef this appeal did not support the conviction on the ground that the prosecution did not prove the guilt of the appellant beyond all reasonable doubt. I have carefully considered the evidence on record~ the appellant's grounds of appeal the learned State Attorney's reply, t4gether with the overall circuhtstances surroundihg this case• There is no doubt that PW1 1 s paddy was stolen on the material, day; This was established by PW1 herself; The only crucial issue is whether it was the appellant who stole that paddy• .... /20••

2 There is no dispute that PW1 did not see the appellant or anybody stealing that paddy. The •nly evidence is circumstantial. There are numerous authorities guiding the Courts on what type of circumstantial eviden~r'pon which a Court can convict an accused person. ?·· .. :."; . ..;. In the Gase. of ALLY BAKA...~I & PILI BAKARI ( 192,~ThR_jQ the·cCourt of Appeal of Tanzania held that where the evidence against the accused is wholly circumstantial, the facts fro ·hich an ,;hi't~~ence adverse to the accused is sought to be drawn must be pr;vd 0 beyond ;asonable doubt, and must be clearly connected with the facts from which the inference is to be inferred.. In the present case the only circumstantial evidence is that of PW2 Rajabu and PW3 Joyce who said they saw the appellant looking :for buyers of his paddy. But none of them said __ th.e said paddy was that of PW1. There was no mark or anything to siiggest that tht paddy was the one which had been stol1m from PW1 1 s house. The appellant's house was searched and no paddy was found. It could be true PW2 and PW3 saw the appellant with some paddy looking for buyers. But that_ per se is not conclusive that it was the very , ~ ' paddy stolen from PW1 1 s · house;'· it'e could have obtained it from somewhere else and was unwilling to disclose it in order' ft> avoid detection. It was also very unlikely that the so called informer saw the appellant he stealing and kept quiet until whent.,saw PW1 sometimes later. The- ~d :i.n£or:uer refused even to ·be mentioned anywhere inconnection with this case. It is highly doubtful whether there was really such an i.niormerv Thia was p!'Ob-ably a cook up by PW1 in an attempt to strengthen her case. It is upon the above reasons that I concur with the learned State Attorney that the prosecution case was not strong enough to support a conviction. In view of this I do hereby quash the conviction and set aside the sentence and compensation order. The record shows that the appellant is serving another sentence of 5 years imprisonment inconnection with another Masasi District Court Criminal Case. He should therefore be returned to prison. B/C: Mr• Ladda. S. N. KAJI JUDGE 28.7.99 /j /j -- / . ,. ,, S. NJ.: KAJI - JUDGE 28.7.99.