19700603 TZCA Dar es Salaam

,t ' IN THE HIGH COURT OF TANZANIA At Dar es Salaam. Criminal Appeals No. 285 and 179 of 1970 (-Original criminal oase No. 279 of 1969 of the District Court of Kilosa District at Kilosa). :Before:- D.J.Gu.mbot Esq., - Dil3trict Magistrate 1. J'UMA ATHUMA!JI 2. SAIDI HAMISI •••••••••APPELLANTS versus 1 .rim REPUBLIC ~. & ••••••••• RESPOtrnEnT Charge:- Shop-breaking and stealing o/s 296 of the Penal Gode. EL-K!NDY, Ag. J. - :Both appellants were charged and con~ioted tor shop-breaking and stealing contrary to section 296 of the Penal Code. The charge alleged thH"t they joi11tly broke and stole various i terns of shop goods from the shop of the complainant on 3rd November 1969. They were sentenced to a term of three years in priaon and twenty-four strokes each. They are now appealing against both convictions anrl sentence. It was esta.blishedt by evidence undisputed, that the shop of the complainant was broken into and shop items stolen from therein on 3rd November, 1969. In the evidence• the complainant said that she had closed her shop at 10.p.m. the previous night., and that she first received the theft report at 7 a .• m,. on 3rd Ifovember, 1969. She found a number of goods missing, including baby blankets, various brands of toilet soap - castella, cakium, and camay.. 'l'hen. on 7th November, 1979, detective constable Iona (P. w.• l) seached the house of the first appellant. Some of the goods r-eoovered e.g. two bed sheets, was :four1d to be the property of the 1st appellant as the police officer was satisfied tt.at he had bought them from Pyarali who had confirmed this, bu.t he [,,las not satisfied that the two baby ble.nde·,.;s, dresses and a, rubber spread were those of the first appellant as Pyralli denied that he had sold them to the 1st appellant. Although the police officer said that the complainant had identified these i terns befor.e him, it does not appe .. r to be the case as she merely claim~)d the baby blankets were he.rs. The first appellant claimed that the items found in his house were his. Again on 10th November, 1969, the same police .officer searched the house of the second appellant who is a business-man. He recovered quite a number of shop-goods which he would naturally find in any shop. Amongst them were 20 cakes of castella soap, three cakes of ca.may soap, and a oake of calium soap of English manufacture. The second appellant informed the searching offic.er that the goods were his as he had bought them in Dar es Salaam but; as he could not produce anyreceipts in support of.' hie claim as he said he had bought them in a rfobile van, they were confisticated. The complainant claimed that these were her property which were stolen on the night of the commission of ·the offence. In court the seoond appellant insisted that they were his, and called one witness to testify that such shop goods could 'be found in any shop in Kilosa including that of the witness (P\i 1). But both appellant ware convicted. In his judgment, the learned magistrate was satisfied that the complainant had satisfactorily identi- fied her shop goods and, as he found. that the appellants were in recent possession of the stolen goods, he inferred that they must be guilty of the shop breaking and stealing and he accordingly convicted them. ···,.. The learned State Attorney sought to support their conviction on the ground that there was enough circumstancial evidence to warrant the finding of the learned magistrate, He argued as the appellants failed to explain ~f- how they came by these goods, the learned magistrate was entitled to infer that they must have stolen them, He said the ideutity of the shop items was not in issue. With due respect to the learned State Attorney, I disagree with him on both points. This case is entirel:v fn ini1"'+.H·~li~,1."'f -'° . ·~,.., ... · I 2 - It cannot therefore be argued. convincingly that identification of goods was not in issue. I will have therefore to look at the evidence o: the c,omplainant carefully. As I have already said, she merely picked up baby blankets at the police station and in court and claimed that they were hers. Shed.id not anywhere show the marks on which she based her claims. 'The blankets, as well as the other items, are m~ss manufactured., and therefore, there was a, need of specific identification and reliance should not be placed on appnarances only. The same can be. said in respect of possession of the b:rands of toilet soaps which were found in posseBsion of the second appellant. None of them had any sL ecif ic mark, and only castella soap was alleged to have been manufactured in England and therefore, she claimed that ·she could identify them by the word "England If. This cannot be enough in this case because there was evidence from Phoramusa (PW 1) th.at he too sold similar brands in Kilosa. Therefore there was no satisfactory identification of the goods found in possession of the two appellants and it can not be said that tl1e complainant has established her claim beyond reasonable doubt. It may be that the appellants had been shifty in their defences, as it was argued by the learned state Attorney, but this does not absolve the prosecution of the duty of proving their case beyond reasonable doubt. In these circumstances, I find that there was no sufficient-evidence before the trial court to justify the conviction of the two appellants. The convictions are quashed and sentences set aside. Appellants are released forthwith unless held on some other lawful purpose. Delivered in Court at Dar es Salaam, this 3rd day of June, 1970. (Z.N. EL-KINDY) Ag. JUDGE. \