19710319 TZHC Mwanza

7 / .1 N THE HIGH .. COURT OF TANZAN AT ANZA. Appellate Jurisdiction. CRIMINAL APPEAL NO.521 OF 1970 4 ;. 4. Original Criminal Case No 1 505 of 1968 of the District Court of Tabora District at Tabora before A.G.G, Korosso, District Magistrate. ALLY IDDI KAYAGIIA. . . . . .. . APPELL1,1T(0rigina]. Accused,) 'vs. THE REPUBLIC. I , ,. . . . • , RESPOffDENT(Original Prosec. OHARGE: Burglary and Stealing contrary to sections 294(1) and 265 of the .Penal Code (2 separate counts) JUDGKENT, EL-KINDY Ag,J. The appellant, .Al]r Idi Kayagila, was charged with and convicted for burglary and stealing contrary to section 294(1) and 265 of the Penal Code on two separate counts. He was sentenced to three years and twenty-four (24) strokes of corporal punishment, and 1-21 years imprisoximent on the second count. Both terms were ordered to be served concurrently. He was also ordered to pay shs,61/- in compensation to the complainant. Some of the various items recovered were ordered to be restored to the co lainant, and to another person lawfully entitled to, as it was clearly enumerated in the order. The appellant is apea1ing against his conviction and sentence. The caiplainant (P.7.3), who was a teacher, was attend- ing a training course in October 1968 at Kazima Blind School at Tabora. On the night of the 19th of October, 1968, the complainant slept in one room with another colleague. Then he woke up in the following mornip.g, he found all his belongings missing from the room he was sleewing in. He told the trial court that when they retired to bed the door of the room was simply shut without locking, but . stone was placed against the door on the outside •- presumably for the purposs of the door being kept in place. This door was found as it was left when they retiredto bed. In other words, there were novisibL: signs that anybody had entered the roorn.fron. outside through the door. I believe if ingress has been gained in and out of the room, it is inconceivable that the intruder when going out would be able to put the stone back to the place as it was before. It appears that the room where the cplainant slept was originally made for the purpose of holding juvenile offendore but it was no longer being used as such. The room had only small ventilation windows. Though these windows are referred to as having been small, it leaves a reasoable doubt as to whether any human being could possibly pass through them. fpart ' :2: . from this evidence, I can find no further evidence which v.rould explain how the offnce of breaking could have been committed in this case. As a result of the breaking, the complainant claimed that he lost a number of items of clothing, suit case and a vrjre1ess set. In all he claimed that he lost ioperty jorth about shs.1066/-. On infoimation received 9 Detective Corporal Jonas (P.v.i) visited the room occupied by the appellant on the 25r'T of October 1968. On arrival 9 ho vTas met by a woman who claimed to be the wife of the appellant. The police officer alleged that this woman pointed out the appellant's room, and told the police officer that Kasimu Iddi, who was charged together with the appellant but who was acouitted, :as asleep in the room. Kasiniu was in fact found asleep. He was awakened and asked where the owner of the room was. Kasimu t old the police officer, as did the alleged wife, that the appellant was the owner of the room, but ho had gone out on duty. The police officer insisted that they should search in the room. It was alleged that the wife of the appellant consented to and witnessed the search in the room. In addition Adija a neighbour was called and 1ritnessed the search. Among the items recovered ere a transistor wireless set (-exhibit 2), a paper box (hxh ), a shirt (Exh 4) 9 1 pair of cream pair of trousers (Exh 5), a neck tie (Exh 6), a biro ball point pen (Exh 8), a shaving, machine (Exh 7) and. one b o x of matches (.xb 9). The police officer.alleged that these items were found in. the appellant's room 9 but the appellant was absent. Kasin and the appellant's wife were accordin71y taken to police station. rhen the app• ellant went ijack to his house in the evening, he was infoiied by Adije as to what had happened an his absence. The appellant proceeded to the police station but he could see neither his brother Kasimu nor his wife argaret, and he went back to his house, later, in the evening, the appellant's wife and the accused went back to the house, whore the appellant was arrested. On this second visit the police office:' (P. .l) again conducted another search and this time he collected clothes (Eh lOto 14). And on the 25th of Uctober, 1969 Kasimu was again searched and found wearing a pair of socks (Exh 15). The appellant, in his evidence, made an issue of the fact that he was not nresent when the search was conducted in the house, and disputed'the allegation thatExh 2 to 9 wore found in hs room. In this respect, there is the evidence of the police officer himself together with exhibit register 3: which showed the items which were taken from the room of the appellant when he was absent, lthough id.ija was present and saw the items recorded 9 she could not tell the trial court which items woduced in court sho saw being produced from the rocti of the appellant. Like the learned trial magistrate, I am satisfied that the evidence of the police officer as supported by register \leaves me in no doubt that Exhibit 2 to 9 were also found in, the room of the appellant. .. But the issue is really that of the identity of NG items recovered from the house, and second'y, upon proof that the alDpellant must have b een the person iho ust have kept the offending items in the room of the appelt. For the purposes of resolving the first issue, one has\t0 refer to the evidence of the camplainant. In this CSS69 the complainant attempted to describe each item he.thought waspart of his stolen Woperty. For the transistor...di. (Exh 2) the complainant pointed out the serial 'number on the radio which corresponded with that on the licence Eh 16) T10 licence was in his name and this loft no r sOnabiC ddiabt that the radio ras his operty which ho- botht at shs.180/-. There was no particular mark ofide tity on the suit case (Eh 3). The most he coula saybout he shirt (Exh 4) was that it had blue and white irertThal st ipes. This is, of course, a maker's design, and, is there. ore not particularly that of the complainant's shirt. c1imed that he could • identify the white stocking (xh ) and neck tie (Exh 6) by virtue bf long usage. Lon usage is, of course, not a visible faturc which the trial courts 1 d ascertain itself sirch as written initials or other 'ha'actcristics. He clajj.ned also that the ball po±nt pen (xh 5S)as his property, and also the box of matàhes (E none of these two items had. any special marks on which the complainant could base his claim on. is.f or the sewing machine (Exh 7), which was also recovered from the said room, the complainant did not claim it. He definitely said that it was not his property. The appellant said. that all the above mentioned goods except for the radio and Exhibit B were his operty which were in his room.. The complainant claimed that the pair of trousers (Exh 10) was his property as well. Ho said that on the inside pocket there is written in white thread the words 'tetron/tetrex', and that the bolt for that pair of trousers was left at home. The a p pellant said that Exh 10 P :4: was his property, which he bought at Kariakoo market for shs,240/- together with the pair of socks (Exh 15) on the 15th of March 1968. ifld he claimed that the corrct belt for the trousers was Exh 17. The complainant claimed that the belt (IEx h 17) was his stolen procrty. is the learned counsel conceded that the marks relied on by the complainant does not appear to be sufficient to iDstablish the complainant's claim to Exh 10. The evidence doot show in what 1/ray these sewn words, were s lecial marks. It cannot, therefore,be safely said that the pair of trousers (Exh 10) was fully identified by the complainant. The complainant also claimed that a pair of trousers (Exh 11) ras his, but he a dduced no proof in respect of the claim. The same can be said of the leather belt (Exh 12) 9 the green pair of trousers (Exhl3), and the pair of stockings (Eh 15). The learned na gistrate was satisfied that by means of (1) distinctive marks and features, (2) 1ong use: and (3) sincerity of the witness, the cplainant established his claim. It is dangerous to rely on the sincerity of a witness since a sincere witness, as most oftnesses in such cases are sincere, can be honestly mistaken as to the identity of the goods. !s for long usage, I wouli say that this is a doubtful way of etablishing a claim. It is the sort of basis which cannot be conveyed to and checked by the trial court. Thile such a witness can feel convinced that the material item, was his property, the trial magistrate cannot check his feelings and he has to go by his word on1y. If he has to go by the word of the witness, there could not be any reason why the same nagistrate should not accept the Z claim of the accused or his word, as the basis seems to be the same. This then leaves only the first method i.e. by means of distinctive features and characteristics. tnd app]ying this method in this case, it cannot be said beyond reasonable doubt that the items, except for the wireless st were proved to be the property of the complainant. I would agree with the learned State Attorney that the various claims were not proved beyond reasonable doubt. However, he submitted that the conviction can still be upheld on both counts on the ground that the canplainant was able to identify his radio and that this was adccuate proof for both convictions. It has been held in practice that, in certain circumstances, convictions will be upheld if it was proved, beyond reasonable doubt that one or part of stolen property was found in possession of an accused person, in the absence - of a reason- able explanation of how such an accused came to be in possession of such goods although in the majority of cases in : 5: - practice, the ouestion of giving explanation does not arise as the charged person would either totally deny possession or lay claim to the goods. And I think it Has on the basis of this nroposition that the learned State Attorney supptcd both convictions. I think with the evidence on record, there can he no reasonable, doubt that there was safficient proof in respect of the radio, but the critical issue as whether the radio and the clothes were brought in the house together. Thea mpellant denied that the radio was his omerty. The other person Kasiru Iddi was living in the same room as the appellant. The police officer (P.T.l) alleged that these items were brought in by Kasirnu, but this was just hearsay as the person who in'ormed him did not give evidence. There was no evidence to show that the radio was brought in, at the same time, as the rest of the clothes although the fact that it was found in the room raised suspicion that it might have been brought there by eitlBr of the 3 occupants of the room. 2 herefore, it was doubtfu.l whether it was reasonable, in the circumstances to infer that the radio was brought in at the same time as the other items were. In the circumstances, I f irif. it unsafe to conclude that there :as sufficient proof in respect of the items alleged to have been stolen. The learied. magistrate considered it unsafe to convict Kasimu, but he did not consider whether it was not possible for Kasiinu to have brought in the radio into the house, Had ho done so he might equally have been reluctant to find that the appellant was in possession of the goods, especially when there was no a decuate evidence to shcw that those goods, other than the radio, belonged to the comnlainant. Ind, in respect of the first count, there was inadeouate evidence showing how the offence of burglary was committed, as I have already explained. Hence, with due respect to the learned State Attorney, I consider that the evidence leaves reasonable doubt in my mind as to the guilt of the appellant, in respect of both counts, and I am satisfied that it is not safe to uphold the conviction of the appellant. ORDER: Conviction quashed. Sentences set aside. The Appellant should be i- eloased forthwith unless hold on some other lawful purpose. Delivered in Court on the 19th day of 7arch, 1971* (z.N. EL-K.INDY.) ACTING JUDGE. '--1- -- __Jj-_.--.,---__- -- - -- - -.