IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DISTRICT REGISTRY OF BUKOBA AT BUKOBA H.C CRIMINAL APPEAL NO. 8 OF 2017 (Arising from Karagwe District Court in Criminal Case No. 124 of 2016) ABBAS GWASSA ---- -- APPELLANT VERSUS: THE REPUBLIC RESPONDENT JUDGMENT 26/10/2017 & 22/2/2018 The Appellant, Abbas Gwassa was charged and convicted by the District Court of Karagwe of an offence of stealing by agent c/s Section 273 (b) of the Penal Code Cap 16 RE 2002. He was sentenced in absentia to serve ten years imprisonment. The trial court further ordered the Appellant to compensate the complainant an amount of Tshs. 8,500,000/= with interest at commercial rate as per Section 348 of the CPA Cap 20 RE 2002. He was 1aggrieved by the said decision hence decided to institute this appeal to challenge the same raising a total of nine grounds of appeal, out of which four were brought as additional grounds as follows:. Five (5) grounds of appeal:- 1. THAT, the learned magistrate erred in law ad fact to convict the appellant without proving the case beyond reasonable doubt. The cardinal principle of our justice system is that the accused is not required to prove his innocence. This principle is enshrined in the Constitution of the United Republic of Tanzania of 1977 under Article 12 (6) (b). It’s clear that the Appellant disputed the fact that he did not deliver the 49 sacks cargo of beans to the respondent because their agreement directed to deliver the cargo to one Mdashiru who resided at Benaco and the same has been complied with on part of the appellant. But the court did not bother to scrutinize this issue so as to test the weight of both evidences provided by prosecution and defence sides as it has been cemented in the case of Komba V.R (1973) L.R.T. no. 39 the court said that in criminal cases, the burden of proof is on the prosecution to establish their case beyond all reasonable doubt. An accused person ought to be convicted on the strength of the prosecution and not on the weakness of the defence. When an accused makes an assertion, it is the duty of the prosecution to disprove it and establish the guilt of the accused and not the accused to establish his innocence by calling witnesses. 22. THAT, the learned magistrate erred in law and fact for failure to call for witness that would have put everything into order and bring just decision. The court failed to adhere to the requirement of the law by not calling the key witness in disputed issue, one Mdashiru to produce his evidence in the court of law. The same has been maintained in the case of Murimi V.R (1967) EA 542 where it was stated that S. 195 of Criminal Procedure Act [CAP 20 R.E 2002] allows a court to call for a witness if his evidence appears to be essential to a just decision and this is so even if it results in strengthening the prosecution case. w . THAT, the learned magistrate erred in law and fact for failure to consider the receipt (bank pay in slip) worth one million paid to the respondent (Antony Benedict Mfugale) in his personal account maintained at NMB BANK as an evidence. The Appellant personally did tender the receipt to the public prosecutor Sgt Tumaini by then to be submitted as an evidence of settling remaining debt of two Millions. 4. THAT, the learned magistrate erred in law and fact for convicting the Appellant without satisfying himself on what grounds made the prosecution witness Pw2 (Anthony Benedict Mfugale) not to prefer a written contract which would obvious show the terms of the contract in case of default on either party. It is clear that the respondent and the Appellant had conducted the same business several times basing only on mutual contract whereby there was no need of producing delivery note (receipt) in their business