Republic vs Samwel Bayo (Criminal Appeal No. 268 of 1990) [1991] TZHC 2382 (4 July 1991)

c-.. .,;;..--• \ '' -.:..: ·' ,.-., . .,.-i .,,;. --..:,-.. .... ,. • •-•....ii• • •~I <i; - ' - ' ; · ,: <:. - :;~:-:-4- ~t: < ·: . <··' :·; -}'J~>- - IN THE RIGi ·coutlT : OR TANZA:ltr:A -, < : • :. ' : < :•::: ,, '<, ' .. , ., ) ,- " - , ~ -- ~. ;: - '"~,.~ . , 7 AT .. rn.m::dll. · , · ·. '··- \ .. . ' .. , ... ;,.• APPELLATE JURISDICTION ,- CRil1INAL APPEAL NO. 268 OF 1990 . , ORIGINAL CRIMINAL· CASE NO• · 85 OF 1990 OF TI:rn:: DI.3TRICT C01TR'l' OF I@ULU DISTRICT MBULU . ' . ' - . _t . ' BEFORE E.-- 1u11iliGISYE Esq, '"DISTRICT Mi1.GISTRATE ...... S.AMWEL BAYO •••••• _ ••• ~ •••••••••••• · •••••••••••••••• PROSECUTOR Versus REPUBLI_C ! ••••• I •••••••••••••••••••• (, ••.••• , •••• •L• .._AC_CUSED. J U :D G M E N T.· . \ This is an appeal from Iulu District Court Criminal Case No. 85 of 1990 wherein the accused Samwel Bayo was charged with stealing c./s 265 of the penal code. He was conviicte.d and sentenced to 5 years imprisonment. The accused is appealing:against the conviction and sentence. ·, . The complainant Awaki Jamett deposed as PW..1 at the trial. He stated that as he-was selling second hand clothes on the 14.5.90 .at about 11.45 am. in Ibulu township, the accused stole from a .jacket but he.decided to forgive him. Then on he following day, the , ' 15.5.90 .the complainant was unwell so he went to the hospital for treatment. On return P.W,1- found the appellant under arrest for stealing a reddish jacket from the complainant heap of eecond hand clothes for sale. The jacket, valued at Shs. 2,000/= was tendered in court as Exhibit P1. The _theft of th·said jacket was allegedly witnessed by P,W.2 Israel Gwaides and P.W.3 Genda Salme. Subsequently, the accused was arrested and charged with the present offence • In hi-s sworn defence the acced admitted that he went to the place the prosecution witnesses were selling second hand clothes with a view to buy a jacket. He found.the prices too high,so he

· - could not afford to buy a jacket. He then left wearing a_ Jacket •.... ~:.;2 -· , -,

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•(· r: .. - -· - ~ ,:,//' i"" ., :-. ..... , : ,, • ;i ' " .. , , . ~ ' . ,§::_' . -x • . - -· . t t 2 t i ,A~. i ; ,·. :=-/· he already had only to be accosted by the seGnnd hand cloth sellers \ for stealing the jacket he was wearing. The accused thence denied .stealing the jacket, Exhibit P1. In his memorandum of appeal the appellant insisted that the jacket he was rrested in.:;" 'Jelonged to,: him so he cl.id not steal ~ .,, : it from the complainant as alleged by P.w.t·.and P.w.3 In para 3 ·(ii) of his memorandum of qppeal the appellant denied visiting the ·plaee for selling second hand clothes'in Ilfuulu township on the material day. Mrs. Mary Lyimo, lea.med State 1ttorney did not support the . conviction basically because the evidence of the two eye witnesses, P.W.2 and. P.W.3 was contradictory. She criticized the trial magistrate for shiftn~ the burden of proof to the accused by reqU;iring him to prove that he did_not steal the jacket. In the event of the appellant's conviction being upheld, the learned State Attorney advised the court to reduce the manifestly excessive sentence of five years imprisonment imposed on the accused by the court below. The issue is whether the· prosecuton proved the guilt of the accused beyond all reasonable doubt; At Pg3 of -the ,ty-ped· judgment of the court.·below, tpe learned . , . ~ . trial magistrate erroneously shifted the burdern of proof to the appellant by requiring the latter to produce the person who sold to him the jacket, the subject matt?r of· the thef:• The appellant being, the accused has no duty in law to prove his innocence. It is trite law that the burden of proving the. guilt of the accused is ,always ,on the prosecution. According, to P. W. 2 a.nd P. 11. 3 who were selling the second hand clothes, the accused was among the r,1Dny prospective customers iooking at .t,h:J second hand clothe.a and selecting those whicl'i suited their tast.es. Somehow the accused who was weaxing. a shuka malllaged to sneak off with the jacket Exhibit P1 by hi.dine it under the shuka he . .•••• ~/3 I \ -· /

... -. t",_ . ' ,, ') ',t'' ' ·.c I t 3· ti ' ·. ~ ,,::; . ,·. . , ··: . himself with. When the two witI1e.se5. _ralized tha'.£ the jacket was. //}l' missing, they followed the acct.rnd a.rid found him viearing the jacket .. $- which he claimed he had already :pid for: " si nilinunua?'- The fact:./ • '. .. • p • . ' . is the aacused had not paid fox.: the jacket so he st'ole it. At the t·· hearing of the appeal the appellant stated that the trial court denied him the right to call his defence witnesses. The record of the trial court shows that the accused opted to defend himself on oath. . ' Re said that he had no witnesses ·to call.· ii.gn. ding his dnf.ence the •: ,4, ,,. : • • accused admitted thd he',risited the.sale 0£,sFond"hand clothes at Mbulu township on-the material day but in·his memorandum of appeal he denied visiting the soene of .crim~ or stealing the jacket thereat. ·,,1::, - The fact is the accused went to the Jloe for selling second · ;, . . hand clothes at Mbulu township, where, among many other customers, he examined the variety·of second hand clothes but could not buy any because the prices were-not .wi_hin his reach. That is what the accused stated in his sworn·def(;;llce. Dln37-ing_his own sworn defence in the memorandum of appeal'is silllply not at all consistent with innocence. In short the appellant's sworn .defence corroborated the testimony of P.W.2 and P.W.3 that he did visit the place for selling scond hand clothes at Mbulu township on the material day hereupon he stole the jacket Exhibit P1. ·rn those circumstances the conviction of the accused cannot be faulted. - I agre with the Republic that considering that the stolen jacket was valued ahs. 2,ooq/=,.the sentence of 5 years imprisonment for the accused wno was a first offender was manifestily excessive. Accordingly the five year imprisonment sentence is reduced to one yea:r imprisonment.- It is so Ordered. E.N. MUNO'O, JUDGE! 4/7/1991, ••• •• _./4:· • ,4:-, >·!Ail' ., ''1,,i: ,,:: :th')' ,,,. ·,,:n•!·1fob

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