James s/o Geshimo vs Republic (DC Criminal Appeal No. 117 of 1997) [1998] TZHC 2403 (26 June 1998)

.· .. MOSHI, J. IN THE HIGH COURT OF TANZANIA AT MBEYA DC CRIMINAL APEAL NO. 117 OF 1997 tFrom ·the decision of the District Court of Mbeya at Mbeya in Criminal Case No.323. of '.1996 Before: S.M. Rumanyika - Resident Magi_stra:te) · ,' . . ...... .;.:.. .. JAMES s/o GESH]J,10 •••.••••••••• -. APPELLA~~ Versus TH REPUBLIC RESPONDENT JUDGMENT • There was absolutely no evidence in support· of he convictions of the appe:J:-4.rit,. James Geshimo. The learned state att.orney, -Mr. Boniface, agrees. Tti-pp_Ef- .. lant's only crime appears to have been that he was among the uninvited gue!3ts at 8:. DISCO staged at Loleza Girls' Secondary School within Mbey~ Municipality to mark Form vr--Graduation Ceremony. What transpired at the trial ,., . . - . ·. ' . .... ·' ,, • p ' puts _to question the trial magistrate's si.c knowledge and -widerstanding of our Criminal law and procedure as well as our Evidence law. The DISCO. was staged at the School Hall during the night.of 21.4.96. The appellant, __ :though uninvited, attended it. The school is unfenced. While the DISCO was in progress, unknown persf)ns broke into the school's MARY HONCOCK House (Domitory) and mae away with a large assortment of items worth thousands of shillings belonging to ASHA d/• LUK.ALE (shs. 186,000/=), CHRISTINA d/o ILUMBA (shs.172,000/=), and ESTHER d/o NYA½NDA (shso88,500/=) •. The break:i:ng and stealing were not seen by anyone. No ene·had seen the thieves. Their identities remained unknown. The breaking and theft were dii;;covred at about midnight while the.DISCO was still in progress. The three complainants told a teacher, ,\ Constantino Mlelwa PW1 aut the incident. They told PW1 that they suspected the appellant, but did n~t say how or why. ·It would appear that the appellant, who was still at the Disco;-was suspected .. on account of that he had not been invited to the DISCO. He was held and searched, but none of the stolen items was found in his possession, • • •••••••• / 2

. - 2 , .. . The appeilant, __ nev.erthel-ess /-wa.'s ·arried before the district cf'lurt of Mbeya on an indictment which contained four counts. Theye were: ........... - First count: Burglary, contrary 'to section 294(1) of the .. Pena:l.:·e-ode. Second to Fourth counts:

Stealing,_ co11trary to section• 265 of the Penal Code. The. appellant pleaded not guilty to the four counts, and a ;full t;rial followed. The three complainants (Asha~ Christina and Esther) were )10t summoned to •give evidence.·. ·No::-reaso4s wrl'given. for thir failure to testify. ' .·~ ... , ... On account of their failure .to: 'testify, all that which they had told yw1 and Sgt Ramadhani I; PW2- about their :suspicidn of the appellant, as reported by the two witnesses, was, in law, hearsay eiH:iertce and inadmissible • • Only the recorded sttement of Christina (Ext ,F1) was tendered in· evidence "py the inv.estigator,.D/Cpl Ismail PW3.' But PW3 and the trial magistrate did . . '. . ~ not mer;i.tion the pl"ovision of the law under which they had acted. It must, .however, have :ben section 34B of the Evidnce Act 1967, hereinafter called •·. the Act. But. that statement (Ext P·1) was impropez:-ly and wrongly _admitted in evidence. Section 34B of the Act allows production of a statement of a witness who for some reasons cannot bJ called to court to testify orally. However, before such a statem·ent is tendered in court for 8;dmis_ion as evidence in ·the case being tried,· each and every condit.ion set out under supsection ·(2) of .. . section 34B of the Act° mut b complied with fullyo In this case, as rightly ,.. - .pointed out by tlie·:1•i§arned state attorney, conditions (d) and (e-) of section 34B(2) of the Act we:r:·e not "bcimplied with. So the st.t:eme:1t'•(Ext P 1 ) of Christina was inadmissible At the end of the trial, though, and to the surprised of any person properly ·seized 'of the legal requirements as· to the standard and burden of --:.· proof in a criminal trial, the appellant was convicted of all the four counts as charged. A sentence of 7 years imprisonment for the first count and 3 years imprisonment for each of the other counts, which was ordered to run concurrentl"lr - was handed down. The appellant, quite expctedly, felt aggrieved by the convictions and sente~ces, hence this a1peal. ••o••···••I 3

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• 3 - The convictions, quite obviously, were forced on the appellant. As remarked at the outset, there was absolutely no evidence in their support. With respect to, and for the attention of, the learned trial resident magistrat· , it takes evidence to convict a person of crime. It takes far more than mere guessworko There has to be evide~ce 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. With even greater respect, there is no obligation on the pa.rt of the accused to prove his innocenceo That innocence must under the law be assumed by the court, unless guilt could be proved by the prosecution beyond a reasonable doubt. Suspicion alone cannot be the basis of a conviction in a _I criminal charge.In the words of the Court of Appeal. for Ea.stern Africa in the _I case of Abdallah Bin Wenda and Another v. Reginam (1953) 20 E.A.C.A. 166 at page 170: nsuspicion, however strong, cannot supply a basis for inferring guilt when proof of guilt cann0t be safely inferred beyond reasonable doubt." In this case, therefore, the convictions of the appellant, which were unsupport~~ by evidence, must be quashed. I accordingly allow the appeal, quash the convictions, set aside the sentences, and hereby order the immediate release of the appellant from prison unless he is otherwise lawfully held. AT MBEYAo 26 June 19980 For Appellant: Absent. For Republic: Mrs. Makuru, SSA. B.P. MOSHI JUDGE.

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