19710604 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA

APPELLATE JURISDICTION * CRIMINAL APP.SAL NO. 94 OF 1971 ORIGINAL CRIMINAL CASE NC. 18 OF 1970 OF THE

DISTRICT COURT OF PARE DISTRICT AT SAI B efore C.H. Msamati, District Magistrate ALLY RASHIDI ••• 000 ............... •000 APPELLANT/ACCUSED vers LiS THE RIPUBLC ........................... RESPONDENT/PROSECUTOR CHARGE: 1. Burglary contrary to section 294 (i) of the Penal Code Cap. 16 • Vol. 1 2. Stealing contrary to section 265 of the Penal Code Cap. 16 Vol. 1 of the Laws.

J U B G M H N T BRAMBLE, J. The appellant was convicted of B urglary and stealing and sentenced to 2 years months imprisonment. He was further ordered to receive' 24 strokes of corporal jxinishmcnt. These are appeals against convi- otion and sentence in each case. The brief facts are that some one broke into the complainant's house on the 30th July 1970 and stole his goods among which there were watches, shirts and trousers. The appellant's house was searched and there were, found 3 shirts, 2 pairs of trousers, 6 watches, one new pair of shoes and some lm blanket. The ôomplainant was called to the police statipn where he was shown certain thiigs and he there identified an old shirt because there was a tear in the 'baok; two pairs of trousers bcause one was black and the other brown; onepair of shoes because of the clour; five watches beoadse he used to wear them. '. There was no evidence that any attempt was made to identify the goods in court, and it is for the fr'ial magistrate to be satisfied on this question and not the complainant or the police. In any case the only evidence of identification worth cOnsideration was the fact that one of the shirts had a tear On the back and this was not positive enough since there was epsial about a tear. Moreove, it was not that the complainant gave a description before inspecting the goods at the police station. Any person can

describe..... an item after inspecting it. The learned trial mgistrate said that the complainant had identified one shirt to his Ba*iisfic.'tion. It may be that p he is easily sa.±±sfied but for the reasons given above and the fact that a large number of items were stolen and this was the only.one as to whici there was any suggestion of identification I do not c'onsidor. that, the, evide- nce could supeort the convictions. .4 ' •• I will, therefore, allow the appeals quash the convictions • and sente- nces and order that the appellant be imrately released unless otherwise lawfully held. Delivered in court at Arusha the 4th day June, 1971. .-.- '\ • .. . (.. ? A1444t4. . (C H BRAIiBLE) -

JUDGE qjbj7f jsm \ , ..- -