19790104 TZHC Dodoma1

IN THE HIGH COURT OF TMtZIA AT DODOMA c_. CRININAL APPEAL No , 17 OF 1978 (Original Criminal Case 819 of 1976 of the District Court Dod.omaa t Dodoma) Before: E.E. Kazimoto, Senior Resident Magistrate •YASINI SAIDI MWINYIGOGO e..oAPPELLiNT versns THE RJPUTBLIC . . . . . . . . . RESPONDENT JUDGNENT JOFATHiN, J. YASINI SAIDI MWINYIGOGO was in the district court convicted of burglary and stealing, and sentenced to concurrent terms of 8 yeers and 3 years, respectively. His appeal to this court is against both tc convictions and the sentence. The house of the complainant nupoars to have been broken into on the night of September 22 1 1976 and. a clbthes iron stolen therein. Ingress seems to hve been made by manipulating the window panes and in the process finger impressions were leftbohind on the glass work. These, on the next, day were photographed by Pw.3,thoopolico photographerand despatched to the Identification Burea D'Salaam for comparison with the fingerprints of. suspects. On Qctobcr. % 16, 1976, according to Pw.3, he photographed the appellant!s finger-prints along with those of .oeral other suspects and posted them to the Identification Bureau. The bureau in their report show the finger-prints of YASflI SI-IAIBU to be identical with those found on theindow panes. There was the further evidence of Pw 1 2 that on October 14 9 1976 the aopclleaat, a eon known to him since 1974, had sought and got a room to rent from him. The lock f the door to that room was defective and as the apcilant saId he would be away for sometime, he had allowed hin to keep his belongings in his own i't of the house. Athong his personal effects, he said, was an electric iron. This was identified at the tritl by the complainant as that stolen from his house during the burglary. The aapeilant in his defence denied to have entrusted the iron to Pw.2 • He also denied that his finger-prints were taken by •3 on October 16 while he was in custody.. He explained that.he was not arrested, in connection with another case, until October 19. . •. - 2 - In this case, as is another aeal brouit by the same appellant which I dealt with recently, there is some difficulty to say whether the secimen finger-prints repo±'ted on by the Bureau were those of the appellant. 11 1 name in the charge sheet w given as YJINI SiIDI Sb J.'JINYIGOGO and indeed, that is the name he adopted at the trial. The report of the Bureau, on the other hand, gives h.s name as YiINI SHAI•BU There has bean no suggestion, howoacr, that the two names refer to one and the same norson, n roly the anpellant. I note, however, that the learned r .siJe:t magistrate, as he thn wa)8i observod in his jud.mont that ,.tho aaellant had adniitted the, finger prints to be hia If the observation was in reference to the finerprints fiund. at the scene, it wart a misdirection. For, the appell.mt uswering a question put to him by the court on the point, denied his fingerprints were found at the scene. It would also be a misdirection, I think, if the reference was to th specimen finger-prints I subrnitted to the Bureau. It would ream to arise from an answer given br•the appellant when hesaid to the effect that, he admitted the finger-prints to he his because specimen finger-prints, had been taken of him eight times. I thderstand • this to mean that ha was not sure they were his finger-prints. although they mi1'Lwell considering the numerous occasions he had been: called upon, to supply h i s finger-prints. There is, incidentally, some confusion as to when Pw.3 took the finger-prints of..,thc appol.Lnr.t. The former seemed clear in his evidence that it was on October 16. This is refuted by the appellnt when he says he was not arrested until October 19. There is yet another version. The Bureaut.report shows Pw.3 as having taken the finger-prints on December 17. Presumably, that is what was stated in. the hotter of P3 forwarding those finger-prints to ii"..a Bureau. On the basis that the witness took the appellant a finger impressions on October 16, it may be argued that, the finger-prints he actually submitted were those of a person other than the appellant. That it may have been so finds expression in the fact that the finger-prints reported on are those of one YASThI SHAIBU who, as already noted, has nat 'been shown to be the 9.pvell,--)nt. Pw.3 took the finger-prints, of several other.suspects and it is cpxi+.e .possible that the exhibit specimen finger-prints were those of oneof If th..evicience of fir t.pririb* . excluded. j as ought to be done,. the only, evidence in sup'ort of the ction would be the account of Pw,2. , - 3 - However, the exhibit iron having bc n found in his possession he had every reason to veek to exculpate nimseif.. His evidence,, therefore, 'yas not that of a disinterested witness. It was the tos . timcny of a person who had in fact been arrested and charged for possessing that iron along with many other things "nd it was not safe to act on his account without looking for corroboration. None was however, forthcoming, this notwithtanding that his house servant, as he said,, had been pres nt when the appellant brought those things and it was he who had received and kept them. In the result, therefore, I om unable to agree with the Republic that it would be safe tc uphold the convictions. They are hereby quashed as well as the sentence. This, however, will not result in the o pellant' s release from prison as there are other cases fon which he is serving sentence. P. N. JON.1IN fJ UJ.JJ-Li Delivered in open court this 4th day of January, 1979,. / (<i P. N. AFT JUDG-E