Fredrick Siwale vs Republic (Criminal Appeal No. 53 of 1998) [1998] TZHC 2281 (27 November 1998)

— _ / -ie IN THE HIOd COURT OF TANzNiA AT hA CRIMINAL APPH±L NO. 53 OF 1998 (riginal Criminal Case No. 793 of 1997 "0 of Mbeya District Court at Nbeya Before: A0 11i PUMANYIKA — Pe'aldent Magistrate) FREDRICK SIWALE APPELLANT Versus THE IEPUBL1C PESI-ONDENT. JUDGMENT •000 The appellant, Fredr.ick s/o Siwale, was indicted before the.district court of Mbeya for three counts of Stealing by rvant contrary to sections 271 and 265 of the Penal Code0 he was convicted as 'charged and sentenced to terms of imprisonment o f oh years for the first and second counts, and five years for the third count, 0 which were orderd tO run concurrently. He was dissatisfied with the convictions and sentence, hence this, appeal preferred and argued before me by his learned advocate, Mr. Mbise. Nr. Mulokozi, learned state attorney, declined to resist the appeal0 — 0 Both Mr. MuJokozi and Ir1ro Mbse are agreed that the appellant was convied on insufficient evidence0 With reapect, I am satisfied that they are right0 0 Jackson Nahali (PWi) was a 'Transporter W1Q owned a garage called Fitina_Jiranjae at Soweto area within the Municipality of i4beya. The appellant was employed by PWI as the Manager of the garage. The appellant, as manager, was empowered to purchase auto spare parts for the garage from their dealers0 He was also authorized to 0 collect rent from tenants in a ho1se which belonged to PWI, and to speid the money in the garage as imprest. The first count carried an amount of shs.155,000/=.. But no effort at all was made to establish the charge0 No witness, not even PM1, testified on it. So the appellant was convicted of this count, which was denied by the appellant, on no evidencét all. bith respect to the learned trial magistrate, it takes evidence to convict a person of crime. It tahes far more thah mere guesswork. 'There has /2

2 to be evidence which is legally admissible in a court of law and, moreover, such evidence has to prove the guilt, of the accused beyond all reasonable doubt. The second count carried the sum of I shs.g . ,0001'. =. An auto spare parts dealer in town, Llick Kabere,e (1I3), claimed to tave supled two cock srieets worth that money to an unidentified person who told P3 thathe was sent by the appellant. The appellant denied to have sent any person for those spare parts. The unidentified person did not testify0 Thus what he wasreported by PW3 to have told hiin was, in law, hearsay evidence and inadmissible. Evidence of a statement niade tq a witness not by a person who is himself not called as a witness may or may: be hearsay0 It is heareay and inadmissible when the object of the evidence i- to establish the truth of what is containedin. the statement0 That was the position here0 The statemnt., on the other hand, is not hearsay and is admissible when it. is props'ed to establish by evidence, not the truth of the statement, but the fact that it was made0 The fact that the statement was made, quite apart from its truth, is freqiently relevant in considering the mental stale and conduct thereafter of the witness or of some other person in whose presence the statement was made0 Still on the second cáunt, there was a letter of confessien (Ect P3) instroduced by PW1 allegedly written by the appellant. The letter, haevr, was not identified with the appellant. The appellant denied to have writtei i. PWI had not seen the appellart write and sin it. lie did not even claim famili,arity with the handwriting. and signature of the appellaal. And worse, the confession contained in the letter was "retracted at the trial and, in the circumstances of this case, the trial court could not have properly acted on,it without corroboration evidence, whiOh was wanting inthi..case, It was sommon ground that all books of account pertaining to the affaire-si the garage relevant to the case against the appellant had been destroyed by fire by F11. . . And the third count carried a Sum of shs.3,000/=e Atenant, Mwmsua Hussein (PW2), claimed to have paid to the appellant shs.21,0001= as rent, andPW1 claimed that the appellant accounted f or shs.18,000/ Only, leaving out shs.3,000/=. That was all the evidence agnnst tie appellant on this count. The appellant denied to I 000000000 13

have retained the shso3,00010 The transaction, according to PW1, was documented, but no documentary evidence was produced in support of the allegation of PW1. The books of account, as said, iiad been destroyed by PW1. In my view, in the absence of the relevant accounting documents, the allegation by P41 of failure to account could not be taken established, let alone beyond reasonable doubt0 It remained an allegation0 There is no obligation on the part of an accused to prove his innocence0 That innocence must under the law be assumed by the court unless guilt could be proved beyond a reasonable doubt0 I would, finally, turn to the sentences passed0 The sentence of eiht years imprisonment was not only unduly excessive in the circumstances of the case but it was in excess of the sentencing power of the trial court0 The offences were not scheduled under the Minimum Sentences Act 1972, and in terms of section 170 (1) (a) of the Criminal ]rocedure Act 1985, the maximum custodial sentence the trial court had power to impose for the offences was five years imprisonment0 I would certainly have interfered with the sentences were the convictions tenable. I accordingly allow the appeal, quash the convictions, set aside the sentence 51 and hereby order the immediate release of the appellant, Fredrick s/o Siwale, from prison unless otherwise lawfully held0 BOP0SHI / AT MBEYA. 27 November 1998

• For Appellant: Mr. Mbise, advocate.
• For Republic: Mr. Mulokozi, State Attorney.