19700624 TZCA Dar es Salaam2

D THE HIGH CCURT OF TAU~NIA AT DAR ES SALAAM CRIMINAL APPEALS N0.156 AND 157 OF 1970 (Original Criminal Case Ne. 171 of 1969 of the District Court ot Mpwapwa District at Xongwa). Befor~:- c. M. Shilogile, Esq., - District Magistrate MOHAMED \iAZIRI •••••••••••••••••••••••••••APPELLANTS ALI RAMADHANI versus THE REPUBLIC •••••••••••••••••••••••••••RESPONDENT Charge:- Store-breaking and stealing o/s 296 (1) of the Penal Code. JUDGMENT EL-KINDY, Ag. J. - Mohamed Waziri, the first appellant and Ali Ramadhani, th second appellant, were jointly charged together with Daniel Joseph, the driver, with a.and convicted for store breaking and stealing contrary to section 296 (1) of the Penal Code Cap. 16. Each of them was sentenced to a term of two years in prison with the statutory corporal punishment of twenty-four strokes. As the alleged stolen bags of maize were foW1d, no order for compensation was made against any of them. They are now appealing against both conviction and sen~tences. The complainant, who is a business man at Sa.gara village in Kongwa district closed and padlocked the door <)f this store, which is situated at the back of hia house, the previous night of the 15th August, 1969. On the following morning he noticed that the padlock has been forceably removed, and upon checking the store contents, he found that 7 oat of a.bout 70 bags ef maize were missing. He also noticed seme toot marks whether these were et human beings or of animal• tt is not clear - and maize seeds of the greu.nd. Be toll•wed the foot prints and trails ot maize, which started at the door of the store, until he reached the house of •ne Mohamed Juma. At that house, he saw some tyre marks, and he continued to follow the tyre marks and foot marks until he reached the house of Elizabeth (PW2), popularly known as Mariamu. At her house 7 bags of maize were found, but the complainant said that he only recogniaed two of them to be his. There is no dispute that these bags were found in her house where they were kept by the~seoond appellant. It appears that the two appellants, together with qne Nailot, had hired this vehicle belonging to one Abd11, to carry their ''bags of maize to Xongwa. They stopped at Saga.ra at Elizabeth's house during the night. Accou4ing te the first appellant this was because the driver had teld them he could not proceed on to Kongwa because the vehicle was defective. Elizabeth said he found the vehicle parked parked at her house, and 'that he saw it in the morning, and that it was loaded with bags of maize. At that time, she said, she saw the second appellant asleep in the vehicle. She said after some time, after the first appellant had arrived, they unloaded the maize bags and placed them in her house, and that when she asked why they were doine; so, she was told that they were going - , •••••• 2. tor some more bags of maize. As a result of the discovery, the maize was seized and the three persons were arrested. and charged. On the baai■ of the identifioatio.n evidence, the learned magistrate was satisfied that the complainant had identified the two bags of maize, although the appellants olaimedthat the b:!gS werr their property• According to the complainant, he identified the two bags because (1) they had insect powder and (2) they were tied. by a string at the top. Can it be said ·that these two marks were suf'fieient to establish the identity of the two bags? Taking the first mark I should say that this was not a special mark, as the complainant himself had admitted since anybody can possess insect powder. It was not peculiarly his. Therefore, this reference to inspect powder oould also favour either or both the pppellants since they also claimed that the: they owned bags of maize. The learned State Attorne7 conceded that it ma,- well be that this was not a particularly strong and satisfactory mark, but he argued that this court should uphold the conviction because of the reference to the string. Taking it as it stands, I am not satisfied that it was aey special because there was no evidence to show that the rest of the other five bags were stiched in any difference way from the two. The complainant simply said:- "The two bags were among tho seven bags stolen wich ware tied 0.11 top with the string." And tis statement is not clear, as it could very well suggest that it is the 7 bags which were tied on top. Nor it is clear whether this referred to the bags being tied at their tps or tat the seven bags were tied on top of something else. Unfortunately the language is not clear. Additional to these reference should be made to the gact thaj the driver did in fact support the contention of the two appellants that the 7 bags came from them and Nailots. In these oiroumstanoes, I am af the view that it is not safe to uphold the conviction of the two appellants. ,The convictions are quashed and sentences s6 aside, and the appellants are released forthwith unless held on some other laefu.1 purpose. Delivered in Court at Dar es Salaam, this 24th day of J11ne, 1970. ( z. N. EL-KINDY} Ag. JUDGE.