19801114 TZHC Mbeya1

'utod eqq uo ssrxe TqrLop eqtc6seit v aaa'qjj 'tonoosoicI eqq ixo SOr[ UOTSeSSOd eqq aAio.Id o. uep.xnq o xedoacI txooqs eqq Jo txoçssessoI UT sw posnoo eqq. pit rp otrs e puoeq peAo.xcI otx sç IT lq0T qM trç esio U uç e[qojcIct ou sT etrçoop etp, 'seso zedo.icT UT itxo peorç eq ToraulIT nq 'eoçqsnC IuTuITJo JO OqT LIT e-trLI TnJrLeA 'E ST euT.x.00p 'UOTSSCSSOd UEOI JO OUTtOOP eT.fl UO szepfloqs sq Uo DUE.Rl uepinq C14 p92Jt0STp Ptlq ax4noeso.xcI OLIT. 11NI OUTPUTS sq esq o. POI..IOdJUCI OlualSTSVvi 1T POUCT OtII. I.t[ eW. JO UOTOJSTS. 8111 O. peAOId IOU SIt T ulelTadda etq up eso eqq 'u0u1pnC tr UI OM@TA JUT4T Td000u qoutx I odse' enp I4TI 1 s.qnop: jo mopuLls JVtxt?, puoieq pet.suou1ap1ieeq piq TTTn 9 str1 UecIcI 7 eqq. qCL 'TuPTTaddu 0tfl q.SUTDd OTOOS eL UT eOUOpAO OLfl. pesicitx PELt eq tej 'peTJsTs StM Jt'J ITcI- POUCT CtJL •pott{oSTp pue pe mbcni aaax pesnoo—oo 1APTO STH OpoQ TuU0d °fl• JO 89F, pue 99Z 'S O. tJ4UO0 'TjoLIT eiq4o JO Pe.OTAUO0 ueeq ELj aoqju ToTaTsTp ltZT.II JO Tamoo IOTZISTP eq. q urçq O. Ino pOeEI SUM eoueqtxes Tuqj oTuamosTaduri 1site2c CATJ JO 90UOUCS UT.IOS ATue.LXnO St 91OI 11TErU13tt3 U[TeddC etp — ' c 'vrvwvs J N a N 0 a 11 C LNaaNOdSIH ' ° . ° ......' ° ° ' ° ° ° OI'Ifld{ 3.HL SUSJ8A JTv' ... ... ""'aDVDODNVXVIflVH3 '( vinii IV LollI1TsIa VDMIIII Io LEflOO LOILSIaEL do LL6I ro 1179 ° OM [SV3 flTNfl4I}13 'IvMIDIllo) oL6-r d o oct 0N nivataav Ivrrn\aHo MO noiasnrnr lqlvririalciclv 'VAff WA dV ZITT - dTO P11100 110111 3ILL NI 'd r5 '- --- - -2- doubt must be resolved in favour of the accused. In the case at the bar the prosecutor undoubtedly established beyond rational controversy that on September 11, 19779 one of the six cows of one RamadhanI slo Simba was stolen. Two days or so later it was discovered that the appellant, with the assistance of his co—accused, had slaughtered a cow and sold its neat. The skin of the slaughtered beast was seized at the house of one Saivent Nadenge who escaped after arrest. The skin was shown to Ramadhani do Siraba when he was giving evidence. This is what he said about it",,,the skin looks like of my cstoien7 cow." It will readily be noted that the witness did not assert that the skin was that of his stolen cow. His evidence was that it resembled that of his stolen cow. There was no other admissible evidence connecting the skin and the animal the appellant and his co-.accused had slaughtersd. The appellant and his co—accused denied stealing the complainant's cow. Indeed1 they denied having been in possession of that beast. It seems to inc tha±,the evidence on the i'cntification of the skin having been inconclusive, it wasp the duty of the learned trial magistrate to give the appellant the hoeit of doubt on the point and acquit him. Nr Teemba,pounsel for the Republic, conceded that the appellant's guilt wai proved beyond a reasonable doubt. I respectfully apove tie 'oricession, Before I part .w.th. this fcase.i should like to say a word or l two on the procerehich hovld be followed by magistrates regarding exhibits .yl-4ch are brought before then. In the present case when e IsIduyas shown to Ranadhani s/o Simba and after the witness had idenid it as resembling that of his stolen cow the 1eriedtriai;magistrate did not order that the skin be marked Vor .deitification. As a result the article -3- was not so marked. That omission was an error, It is not of little importance that exhibits be proDerly handled during a trial. An error in handling an exhibit at the trial may cause a wrong decision being arrived at when the appeal against the trial court's decision is determined, It is mainly for this reason that I hope that every magistrate will faithfully follow the procedure which COX, C. J.,as hethen was, outlined in Hussein Nanji Sunderji v Regina 11 T. L. R. (H) 105. This is what the learned Chief Justice said, at pp., 106 - 107: If Magistrates must not allow articles to be referred to in Court in any way or put to witnesses unless they are properly before the court. In a case such as this, as soon the prosecution or defence refers to an article on which it is sought to question a witness, ad that article is not already an exhib!+ before the court, properly produced, tendered, admitted and marked, the proceedings must be stayed while the article is marked for identification, 1y,.' 1 No.1 for Identification' or ?11o1 for Id,' for short. This is a formality to which the other sido cannot at that stage object and thur there can be no argument, .Thereaftc: the artiöle can be referred to as: 'No.1 for Id,' in the questions and in the evidence until it is properly produced and tendered as an exhibit, Immediotely the article is produced and tendd as an exhibit, the magistrate should note in his record 'Nol for Id. prodioeft and tendered' and then ask the o - ;her side 'Any objection?' If n objection is raised the record shoiilj then be marked 'No objection.' It Vi , objection is raised the record should ,cortaLn anote of the objection and any argume thereon and then shduld be marked 'Objeti;On over—ruled 1 or 'Objection allowed' as the case may be. But if the article is admitted then in the record, should áome the words 'No.1 for Id. now atted (i.e.. as an exhibit) and marked ..,Z: that is to pay marked with its prop exhibit mark... In normal , -.4. — cases where an article has iotTirst been marked for identification the record shoul3 reed 'Green - dress, produced, tendered, no objection, admitted, marked ...'. Further, an article, it must be remembered,. can norr.ially only be produced ii • ...... Court and made an e:thibit through a witness when heis giving evidence. When an article or docunent or what you will, previously marked •.. for identification, later becomes • an exhibit then an entry as stated should be made in the record such as 'No.1 for Id, now acinitted in evidence and marked or whatever may be the series the court is using for exhibits. For this reason it is •. useful in praoti O 6 to keep numbers for one purpose and letters foahothe so that eventually 'No.1 for Id.' may possibly lecone: e*hi1t 'D' and • thus avoid the confusion which is occasioned w1- e anErticle not properly produced in evidence is - .• Vën oneôf the sfle series of •- marks as the exhibit. If the docun€-rit or . article marked fbr ideiatification is not subiently properly produced, tnercl and adidtted as an ;ris. exbiti,and ::nj to it form no ef.Tective part of the record th n.'po b1T odi-on±y)'- :.-• arid should othedse be cor.ipietely • ignored. both by the t? rft d± düe' course on appeaL." For the reasons I hav given, I allow the appeal, quah the conviction and set aside the sentence imposed. thereon. The order for compensation is lso set aside. Unless the assault on his personal liberty is otlerwise outhorised bythe law, the appellant be set at libërby forthwith. . . .. Vn B. J. SANATTII JUDGE. -. Delivered this 14th day of Kovanber, 193O in the presence of Nr Teemba, counsel for the Ecpublic. T •. ---------- B. t&. SAMIiTTA JUDGE.