19701106 TZHC Mwanza5

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JO (i)it uoioos o, Sxu a l.L100 i0do.1ct uoios 'UtATO3O1 IOJ pE4OIAUOO SZM Ott XLq 'opoD toUea OL[ JO (T)96 suo.00s o .xuoo JuctJoqs )trJ :upT -oo.xq —dOts .10; ZflOO ot, iq po çnh OJOM OtIM StXOSlOC!. 1Ott0 OOJt tflIM 1DO?O pOJX'c(O OIA tITIoctdO Ota; - /M ENIfl2 TLIO . TOTI 3j 99/0 utpoqs piiC 2tDpJO1q-dOt -:arnIo 0 0 0 0 0 • , • orIaniaI aria; (::•flDasot TrI•rIo) • t:toarri', - SflSJOA - jjcc13oV TTiIIIttO) a;flt-L]J 0 ............ ' ITJTTAi: IcIturi • (o'3.1stXI 3T1Stp 4 'b uarue1j j • a; O;o 3zr17AT;[ O moo q0t.X8p Ptt- Jo 6961 JO C 90T °H 0 D 1UTUTD IWTJTJ) oL61- tc - L oir rJa tr,J TTILiIaU uo-r.oTpsç.1n2 otoddy VZE7• iivirTzrra; J) L11L1.O Hem TT }iI /• if . . .2 after the court had ensured. that she was aware of that frovision cni that it had recorded that this procedure has boon couplked with. Before such ct witness dives evidence, the court has to explain to the witnesses that he or she was under no lcal obliation to give evidence c1nst her hu.sbnd or wife. In this case, the record shows that Kahabe bean to cve evidence and then she said that she wonted to give evidence adainst 11cr huband, but the record does not show that the learned ijar;istrate had ensured that provisions of section 130(1) of Evidence Act, 1967 9 were brou:ht to her notice and certainly there is no indication that the provisions have been conpl±d with.. Failure to c ouply with this provision uadc the evidenc; of Ithabe inadnissiblo cdainst the appellant n1 her evidonc is rearde1s not havin boin on record. With her evidence held ined -raissiblof the court Is now left with the fact of possession of stolen coocls' The learned ti;istrato said that the c;oods were , :Um placed in uunusualti place i.e. in a ba under the shelves Thero is no evidence to sugcst that the Goods were found in unusual p1ace The fact that they were in a gunny bag under a shelf in tho shop did not nean that this wah unusual way of keeping goods in the shop. Indeed the evidence showed that the appellant was undisturbed by tho entrance of the complainant into his shop, and that he carried on his business as usual There can be no doubt that his conduct did not raise any suspiCion at all Had he becoue aware that he was in possession of stolen goods, he would have been concerned about the entrance of the conplainuxi into his shop, and certainly he would not have ket the said goods in eholvoc in the shop wherethoy were finally recovered fron The explcinati on the appellant gtvo was that he had bought then openly, nd he called witnesses to support bin; Charles (D.W.2) denied seeing the appellant buy goods from the other accused, but he admitted that he had given a sthtereent to the police that he had seen two people sell goods to the appellant; However, he alleged that they were not the other accused in the case and that it was in February 1969 The learned State Attorney argued that t1ais evidence of Chiles shoul1. npt have been easily accepted by the learned nagistrate since he changec ffried his statenent Hqsid Charles 1 evidence wont hclf way supporting trio appellant's oxplanatior Therefore, he said, the learned magistrate should have taken the evidence of Charles with great caution and should not, therefore, have been used to show that the appellant was a liar. I think that Chaxles' evidence should have been token with great care. He had, at firOt, flatly denied that he had seen the v,ypellant buy goods from anybocly. Then ha agreed that he had made a state- tic-nt to the police that he had seen 2 people sell Goods to.the appellant. And then hestated that he had seen 2 people sell goods to the appellant but they were not anr of the accused charged with the appellant and that it was. in Pcbruy 1969; The evidence of such a person should be carefully considered before it can be used to show that thC appellant Was a liar nd therefore his explanation was not a probable one. In the result 9 it cannot be said that the explanation given by the accused was not a probable explanation as to how he cane to be in possession of the shop goods bearing in mind that the goods were found in open shop and the appellant had exhibited no sign of worry at any time I consider thereforo t that it is unsafe to uphold the conviction of the appeUant The leaxued State Attorney did not support the convictioxi The c enviction is quashed and sentence set aside. It is ordered that the appellant be released forthwith unless held on some other lawful purposc Lelivered in Court at Mwanza on 6th November, 197 0 (z i'i El-KirLy) ACTING JODGE. 6/11/70;