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IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 50 OF 1973 ORIGINAL CRINIMAL CASE HO. 1 25 OF 1972 OF THE DISTRICT COURT OF NANYONI DtSTRICT AT MANYONI Before L. G. Ruginbana . ................ .District Magistrate MOSHIs/oJOHNSAMirELI ................... ........... Appellant (Original Accused) Versus THE RNPTJBLIC. . . . ......... . . . . . .................. . . . .Respoiident (Original Prosecutor) Charge Barglary c/s 294 (1) of the Penal Code Cap. 16 of the Laws. JUDGEMENT ICTIKITvIA AG. J. The appellant's conviction followed the recovery from his sister's house of three sauce-pans which the complainant claimed to have been stolen when her house was burgled. The appellant was sentenced to three years gaol and ordered to pay She. 380/= as compensation to the complainant. He has appealed • aainst this decision. The evidence against him was circumstantial in that he •as not caug.t raiding the complainant's house. The three sauca- pans were not sufficiently identified in that no distinguishing marks were pointed out. The complainant could not be said to have identified them sufficiently by saying that one had the remains of goat meat, that another one had the remains of rice and yet another one the remains of tea. Neat, rice and tea being items of food commonly taken by the all and sundry, one will come across cooking gear with the remains of such foods in almost every house. It cannot therefore suffice in law to distinguish a sauce-pan by the food remains it contains. The irosecution cannot be said to have shown beyond poradventure that the sauce-pans were of necessity the complainant's particularly when the appellant himself claimed ownership of them. There was in my opinion, no evidence on which to hold that the saucepans were the complainant's and for that matter, the appellant could not be said to have been in possession of, stolen property. This was by no means the only weakness in the prosecution case, as I will go on to show. The complainant said in her evidence that her house was burgled into the night of 31st Nay. She reported the theft of her saucepans, anong other -things, on 1st June. Another prosecution witness, P. 111.5 Daima, said that the appellant took the saucepans to her house on 26th nay. . . . . . . /2 - 2 - a The evidence of Daima contradicted the prosecution argument that the saucepans seized from Daima's house were the very ones stolen from the complaii.ant on 31st Nay. This was a very material contradiction indoedand I am not certain that had the trial court directed its mind to this contradiction it would have convicted the appellant even assuming that the saucepans were sufficiently identified. It would therefore be unfair to uphold the conviction of the appellant in view of the insufficient identification of the saucepans, Accordingly the conviction and sentence are hereby quashed. The appellant is to be released immediately unless on some lawful account he has othenise forfeited his freedom. / / DODOMA 41. H. A. KWIKIMA AG. JUDGE S