19880621 TZHC Mtwara

IN THE HIG.t-:! COURT OF TANZANIA ATM.Twr1.RA APPELLATE JURISulCTION HIGh COU~T CRIMINAL A~PSAL N0.32 OF 1988 Original Criminal Case No~56 of 1987 of the District C.ourt of Lindi District at Lindi . Before: P.s. titanda Esq., P.District Magistrate JUMA SADIKI ••••••••••••••••• APPELLANT (Original Accused) versus THI:.: RE.PUBLIC ••••••••••• ,•• • •• RBSt-·ONDEJ'JT (Original Prosecutor) JUD G.M ENT Rubama, Jo Juma Sadiki and tw9_ others were charged with house breaking contrary to section 294(1) and stealing contrary t0 sectiun 265 of the Penal Code., Juma Sadiki was amongst the two ti1at were convicted t of these offences and sentenced to five y.ears imprisonment in: respect of the house breaking charge and 12 months imprisonment_ in respect of the stealing charge. Juma Sadiki has now appealed t.o this court against both the convictions and the imposed concurrent terms of iml)risonm~nt., ·rhere is sufficient evidence that the house of Abdallah Ally Madebe situated along l"lakongoro Road Lindi town ~·as broken into and from therein stclen several items worth more than shs.9,000/::. There is however no evidence establishing that things found in possession of Juma ::iadiki•s co-accused one of whom was acquitted formed p.art of the proper~ies stolen from Abdallah.Ally Madebe 1 s house on the 27th February, 1987. The evidence th :it was advanced by Abdallah Ally Nadebe P\11/. l did not go to th1=: leval of sufficiently identifying those itE:ms as his. Grant12d that Abdallah Ally Ma.debe had produced cash receipt .. No. 77861 dated 2nd Janu,ary, 1981 in respect of a fan that he had bbught from Mtwara Reqional Trading Company and receipt Nool92067 dated }0th April, 1982 in respect of National Radio Cassette. that he had bought at 1'-'itwara Regional T radin.;1 Company but the proeuced receipts did not ·JO as far as saying that the items recovered w·ere the very ones that had been purchased from the Regional Trading Company shop on the dates specified on the receipts. The proper. identification of a Radio ••••••.•• /2 2 Cassette for example would have been the radios serial number·f r this w3s not doneo Identification of Rddio Cassette by_bands is no id~ntification sufficient to be relied upon by~ court of law for bJsing a conviction. High standard of proof is required before a court of law could base a conviction. The other items like a spon,;1e mattress and the three trousers that the co;nplainant PWo 1 . stated were his without specicying his identification marks likewise cannot be said by tnis court to ~ave been ~roperly identifi2do It is quite possible that the complai.:iant could have given more concrete identifying marks of cit least ;ome of these i teins if the prosecutor had ensured that that kind of evidence was led but this possible ommission by the prosecution in no WdY takes the issui of identifiLation any further than were it presently lies i.e. that the prosecution had failed to establish that the items said by the complainant PW.l to have been part of the property stolen from PWol's house were actually those that had been stolen on the material day. It is unsafe in the circurnst~nces to uphold these convictions against the appellant. The appe3l is accordingly allowed. The two convictions .in respect of the house breaking charge and stealing are hereby quashed and the imposed cnncurrent terms of imprisonment set aside. rt is hereby orde~ed that the appellant be set free at once unless he is .otherwise lawfully being held 9n another mattero Noel Luc3s convicted with the appellant does not 3.ppear to have appealed but using my revisiondl powers, I qua.sh the convictions entered in resp~ct of the said Noel Lucas and set aside the concurrent terms of imprisonment. ·1 ord~r that be be set free ~t once unless he is otnerwise lawfully h~ld on anoth~r matter. Yahya Ruoam:1 Judge 21/6/88