Mpanduji v. R., Crim. App. 531-M-70; 26/11/70; Mnzavas, Ag. J.

 

Mpanduji v. R., Crim. App. 531-M-70; 26/11/70; Mnzavas, Ag. J.

The appellant was charged with and convicted of stealing by servant contrary to sections 265 and 271 of the Penal Code and sentenced to two years imprisonment and 24 strokes corporal punishment. The learned magistrate in his judgment hat there was no direct evidence implicating the accused with the offence but he was satisfied that the amount of circumstantial evidence tendered in court was sufficient to find the accused guilty of the offence. He set out the circumstantial evidence as – i. the fact that the accused failed to report the theft to a near-by TANU office; ii. That the accused did not raised an alarm when he realized that money had been stolen; iii. That he did not detain the customer who had entered the establishment with the alleged thief who had disappeared; iv. That he failed to report what had happened to the police station one quarter mile from his shop; v. that he never reported the theft to anybody until two days later when he went to Mwanza and informed his head office.

Held: (1) “I agree that there was evidence to he effect that there was a TANU office near the shop and that a police post was one quarter mile away. One would have expected the appellant to have reported to the police and/or TANU but when cross-questioned the appellant said he was a stranger in Sengerema. He in fact said that he had been there for hardly one month and that he did not know where the TANU office was. Although with diligence, he could have located the office of TANU as well as the police station, this omission on his part does not by itself prove that he stole the money. The allegation that the appellant did not report the loss of money to anyone until two days when he reported to his head office in Mwanza is not supported by the evidence”. (2)”The evidence tending to implicate the appellant was entirely circumstantial. I agree with the State Attorney as well as the magistrate that there were quite a number of separate facts, each of which tended to connect the appellant with the offence. But, in my view, each of these facts was capable of an innocent explanation. As none of the facts was conclusive, the totality of them cannot be said to be sufficient evidence implicating he appellant with the offence. In Herniman vs. Smith (1936) 2 A. E. L. R., page 1389, Greene L. J. when dealing with circumstantial evidence had this to say: - ‘Nothing added to nothing makes nothing and it is not possible by adding a lot of things together to produce something which you are then entitled to say in the aggregate forms evidence fit to be considered by the jury’. In Chhabldas D. Somaiya vs. R. (1953)  E. A. C. A. 144, the Court of Appeal said:- ‘A mere aggregation of separate facts, all of which are inconclusive in that they are as consistent with innocence as with guilt, has no probative fore’.” (3) (Obiter) “Even if the conviction was upheld I would not have approved the sentence as there was no evidence to show that the society is a registered society. No registration certificate was produced to court”. Appeal allowed. Conviction quashed. Sentence and order of compensation set aside.