Henry Ebrahim v. R., Crim. App. 31-DDM-72, 10/6/72, Mnzavas, J.

 

Henry Ebrahim v. R., Crim. App. 31-DDM-72, 10/6/72, Mnzavas, J.

The accused was convicted of stealing by person employed in the public service c/ss 270, Penal Code and of conversion not amounting to theft c/s 284, Penal Code. He was alleged to have stolen, in his capacity as a public servant in Com works, a dyamo, a voltage regular and a battery belonging to the government. All three items were found in the accused’s car, the first two loose, and the last actually attached to the car. The first two items were identified as government property on the grounds that identical items bearing the same catalogue numbers were received by Dodoma Comworks from government stores. Witnesses Juma (PW. 4) and Ahmed (P.W. 5) who were alleged by the prosecution to be present when the accused took all three items were taken by the accused and who gave them to him. The accused himself alleged he had bought the first two items from one Patel (P.W. 3) and that battery had been given to him, as a loan by Ahmed (P.W. 5) from Comworks.

            Held: (1) “There can be no doubt that the conviction under section 284 of the Penal Code was bad and cannot be supported. Had the learned district magistrate cared to read section 284 carefully he would no doubt have four that the section talks of moving objects. It talks of such things as draught or riding animals or any vehicle or cycle however propelled, or any vessel. A car battery is not among such objects.” (2) “As already stated there is no dispute that the dynamo and the voltage regulator were found in accused’s vehicle. The only question which the trial court had to decide was whether the two items were sufficiently identified as the same items alleged to have been ordered from Government Stores by Comworks… There can be no doubt that the trial magistrate accepted the ……. Numbers found on the two items, which numbers were apparently shown on the Issue notes received by Comworks from Government stores ….. as sufficient identification of the items found in accused’s car as the same dynamo and voltage regulator ordered by Comworks from Government Stores. It has however been amply proved by the learned defence counsel, and indeed accepted by the learned state attorney, that the above quoted numbers relied on by the learned district magistrate in identifying the two items were catalogue numbers and not serial numbers …… Catalogue numbers of motor –vehicle spare parts cannot be of any help where the question of identification is in issue as hundred of similar spare-parts may bear the same catalogue number. (3) “The learned state attorney however argued that there was other evidence leading to sufficient identification of the two items notwithstanding the learned magistrate’s misdirection. It was argued that the fact that Comworks had ordered a brand new dynamo and a voltage regulator and the fact that Juma (P.W. 4) told the court that the accused took the same item and that the fact that similar brand new items were found in accused’s car, and the further fact that accused’s story that he had bought the two items from one, Patel (P.W.3. was rejected by Patel entitled the learned magistrate to infer that the dynamo and the voltage regulator found in accused’s car were the same items ordered by Comworks  

from Government Stores. I would accept that this evidence spoke against the accused; but, on the other hand it would be unfair to the accused for Republic to unduly capitalize on it. I do not think the above evidence can be used to replace the standard of sureness and certainty which must in any case be reached before an accused person can be convicted of criminal charge. From the testimony of Juma (P.W. 4) it would appear that Ahmed (P.W. 5) was present when, as alleged by P.W. 4, the accused took the dynamo and the voltage regulator. Ahmed (P.W. 5) does not mention anything about the dynamo or the voltage regulator in his evidence. Juma (P.W.4) told the court that he heard the accused asking for a battery from Ahmed (P.W.5). Ahmed’s evidence is to the effect that it was Juma (P.W.4) who gave the battery to the accused. It was argued by the Republic that this contradiction as to who handed the battery to the accused was resolved by the accused when he said in his defence that the battery was given to him by Ahmed (P.W.5). It is true that the contradiction was resolved by the accused; but, as rightly argued by the defence the fact that the contradiction was resolved by the accused does not remove the fact that the two witnesses contradicted each other. The prosecution cannot rely on the defense case to fill gaps in its evidence. As to the evidence of Patel (P.W. 3) who denied selling the two items to the accused it is true that if Patel is to be believe, the accused’ story that he bought the two items from him would be lies. But as it was held in Moshi d/o Rajabu (1967) H.C.D. n. 384, a magistrate’s refusal to accept a defence as truthful is not a proper basis for a conviction. “It is not necessary to accept the evidence of the accused in order to find him not guilty. All that an accused need do is to raise a reasonable doubt as to his guilt.” – Fanuel s/o Kiula vs. R. (1967) H. C. D. n. 369. In …….the typed copy of judgment the trial magistrate says: “What has surprised this court during cross-examination was that accused bout dynamo and voltage regulator for his vehicle DO 1855 between July and August 1971 – so why did he not fix them in his vehicle until they were found in the vehicle on 22/11/71”? This was, as argued by the defence misdirection. The fact that the accused failed to fix the two items in his car as soon as he bought them does not necessarily mean that he stole them. The crucial question was whether the two items belonged to the Government as alleged by the Republic. At this juncture I would like to refer to the case in Bamari s/o Abedi vs. R. (1967) H.C.D. n. 11 (quoted by the defence counsel) in which the question of identification of stolen khangas was in issue and Saudi J. (as he then was) held: “Exhibition of a pair of khanga not distinguishable from other such items b special marks or features will not support a finding that they are the same as those stolen. The burden is not upon the accused to the his defence, but is upon the prosecution to disprove it beyond reasonable doubt.” In a recent case – Kimbunga vs. R. (1970) n. 243, El-Kindy Ag. J. (as he then was) said as follows on the question of identification of goods alleged to have been stolen “It is not a question of choosing to believe one side as against the other, as if it were a case of determination of rights in civil cases. It was a question of the prosecution proving beyond reasonable doubts that the goods found with the appellants were those of the owner”. It is the same with

This case the question was whether the dynamo and the voltage regulator found with the appellant were those of the complainant, the Government. It is extremely difficult to say that they were; the learned district magistrate having erroneously accepted catalogue numbers instead of serial numbers as the basis of identification of the dynamo and the voltage regulator. There can be no doubt that there is a lot of suspicion against the accused; but as it has, time and again, been held by this court, suspicion no matter how strong cannot be the basis of a conviction in a criminal charge.” (4) Appeal allowed and conviction quashed.