19701204 TZHC Mwanza

I r j S~ m IN THE HIGH COURT OF TANZANIA AT MWANZA. APPELLATE JURISDICTION M1dANZA REGISTRY) 282,283 CR21 APPEAL NOB. 273,259,272274Lof 1970 Original Criminal Case No. 854 of 1969. Of the District Court of Geita District at Geita Bofo±e C.H. Msamati Esq: District Magistrate. 24t.j* Wyu*g . ThSr.aia 4/0 iranois 4e 01e1'g t.*rw. 3 T$U$L 4/0 Ks*a$ APPELLANT 1 MARY BOMBOM ... 6. Ba$hdcM VERSUS T HE R.JPUBLIC . . . a . • a • a * a o o a a a ..............a a • a • a • • • RESPONDENI' CHARGE: Two counts: Robbery with violence c/s 285 and 286 cf the Penal Code Cap. 16 Vol. 1 of the laws. i--I Or -r JUDGEMENT 3FE1fl97 H Es Kisan The six appellants Mateyos/o Mayunga, George s/o Rw9rwe, Bartholomew s/o Severin, Tausi d/o Maganga, Theresia d/o Francis and Mary Bombom together with one James Katabwa against whom the charge was withdrawn, were charged with two counts of robbery with violence contrary to sections 285 and 286 of the Penal Code. At the conclusio.n of the case the first appellant Mateyo was found guilty on count one and the second appellant George was found guilty on count two and each was sentenced to five years imprisonment with 24 strokes of corporal punishment. The third appellant Bartholomew was found guilty on both counts and was sentenced to five years imprisonment on each count with 24 strokes of corporal punishment, the prison sentences to run consecu- tively. The fourth appellant Tausi and the fifth appellant Theresia were found guilty of receiving stolen property and were each sentenced bc two years imprisonment, and the sixth appellant Mary was also found guilty of receiving stolen property and was sentenced to three years imr isonmont. The appellants have each appealled against both conviction an sentence and their ppea1s have been consolidated. The case for the prosecution was that on the night of 2.12.69 the shop of the complainant, one Mrs. Patel (P.W.3) at Goita was broken into and a number of shop goods were stolen from it. It was alleged that the thieves gained access by breaking the shop door with stones and that during the process there was also firing of a gun. Again on the night of 18.12.69 another shop belonging to another complainant, one Mohamedali Nagji (P.W.4) at Kalangalala was broken into and various items of shop goods were stolen from it. The first appellant was arrested at his house in Kalangalala on 19.12.69 and the other appellants were arrested in Nzega on 29.12.69. On their arrest each appellant was found or was alleged to be found in possession of certain items which were alleged to be stolen from the burgled shops and they were accordingly convicted as indicated above. At the hearing of the appeal the Republic did not seek to support the convictions on the ground that the various items fouaill in possessicn of the appellants have not been identifed sufficiently to connect the appell&nts with the alleged theft. The learned trial magistrate found that the first appellant was found in possession of a piece of cloth (Exhibit A2). The complainant P.W.3 said that she identified this piec of cloth because it was of the same material as that which she sold in her shop. It would seem quite clear that this identification was most insufficient because this piece of cloth being a-common article, could have been obtained from ther shopkeepers. - 2 - The second appollantas found in possession of a pall over (xhibit B) which the learned magistrate found to be sufficiently identified becauso the complainant P.W.4 alleged that he stocks such pull overs and he produced a sample which was similar to it. Again it is quite clear that no reasonable court properly d.irecting itself on:teLevidene could accept this as sufficient identification since a pull over similar to that produced by the complainant, being a common article, could be obtained from any other shop. The third appellant was found in possession of a new pair of trousor. (hibit D) which the learned Magistrate found to be adequately identified because the complainant P.14.3 said that her shop is the only one which stocks such -trousers. It may be that the complainant is the only one in Geita who stocks this type of trousers,,but there is little or no ground for believing that the article could not be bought from shops outside Geita, and in such circumstances it could not be said that the pair of tr- ousers in question was sufficiently identified. This appellant was also found in possession of pieces of Kitenge cloths (3xhibitJ and J) and two new shirts (Exhibits H and I) which the learned magistrate found to be sufficiently identified because the complainant F.W.3 said that she, stocks such goods. It would appear that such identification suffers from the same weakness as indicated above. This same appellant was found in possossionof a shirt (Exhibit G) which the same complainant P,W,3 purporte. to identify because she had made it herself using a red thread. This identification also was not sufficient because there was no evidence that this was the only shirt she had made. It is possible that she has made several of similar shirts and sold them out and Exhibit G could be one of them. Finally the appellant was found in possession of another shirt (x- hibit ) which the other complainant P.14.4 identif.ed because he had several of such shirts in his shop and he producecia sample. As indicated earlier this was no identification because a shirt similar to the sample produced could be obtained from other shops. The fourth appellant was found in possession of an old frock (Exhibit K) and the learned magistrate found that it was sufficiently identified because the complainant P.W.3 said that she had tailored it herself. There was no evidence the-x that this was the only frock she had tailored. It is possible that she had tailored similar frocks and sold them and that exhibit K could be one of such frocks. Such identification therefore could not be said to be sufficient. The sixth appellant was found in possession of a new bod. sheet (Exhibit 0) which the learned magistrate found to be sufficiently identified because the complainant P.Ti.3 said that the bed sheet had a permanent oil stain in the middle of it. I do not think such identification was sufficioizt because it is common knowledge that many shops sell bed sheets and oil, so that it is possible to get from another shop a bed sheet similar to Exhibit 0 with a similar oil stain on it. This appellant was also found in possession of a new blouBe (Exhibit p), an underskirt (Ixhibit Q), dress materials ('Exhibits P. and U) and two pairs of kitenge cloths (Exhibit V2) which the learned magistrate found to be sufficiently identified becaac the complainant P.W.3 and P.W.4 alleged that they stocked similar goods As indicated earlier this kind of identification was most inadequate because there is nothing to show that such common articles could not have been obtained from other shops. Such evidence as there was therefore merely amounted to a suspicion and could not form the basis on which the learned magistrate could have convicted the appellants as he did. I therefore agree entirely with the le4rned State Attorney that the convictions are unsupportable. Accordingly the appeals are allowed, the convictions and sentences are set aside and the appellants are to be released unless otherwise lawfully detained. De-Souza for Republic. Y ( R.fl. KISANGi' Appellant present. AG. JUDGE. 4/12/70