19740219 TZHC Mwanza

1' 4'., SU •' ' IN THE HIGH COURT OF TpdTZjNIA A AT MWANZA. - APPJLATE JURISDICTION HIGH COURT CRIHINM APPEJL NO0 500 OP 1972 Original Criminal Case No 123.2 of 1972 of the District Court of ]hiaAza District at anza - Before B. N. Munuo (rfrs 0 ) Resident IVIaistrate. CHJIBIJESJJd/IES . . . . .. •• • .. (Original Accused) versus THEREPTJBLIO. ... ..................... RESPONDENT (Original Prosecutor) CHARGE: 1st Count: Burglary -c/b 294 (1) of the Penal Code Cap. 16 Vol.. I of the Laws 2nd Count: Stealingc/s 265 of the Penal Code Cap. 16 Vol. I of the Laws - JIJDGEMENT. HPJLILA, J. In the district court at wanza, the appellant was convicted on the first count with Burglary and on the second count with stealing - and was sentencod to concurrent terms of three years and one year rospe- ctive1r. According to the complainant Willibald Mushunbui, his room was broken into on 27th'S6ptenber, 1972 beteen 530 p.m. when he left for a walk and 10 p.m. when he retuñ'iec1 ., When he returned he found that his room has been 'broken into by brealdng the pad lock on the door andthat the head of a Singer sewing machine Was missing from the room'. He reported what had happened to his landlady one Patuna Salun (PAT 2). The landlady told him that one of his friends had called at the house at about 7.45 p0m 0 .and claimed that he had a parcel which had been entnsted to him by the complainant for him to deposit in the complainant's room, but., the landlady went on this person had claimed that he had lost the key to the room and that therefore he proposed to break the lock. .. The landlady advised him against it and on further checid.ng he announced that he had the key in his pocket and h6 proceeded to open the door with it and entered the room 0 Froñ this stage up to the time appellant left the complainant' s room's the landlady did not take any notice, so she could not say whether when this person left the complainant's room he was carrying anything. The landlady then proceeded to describe this person to the complainant and it was in consequence of her description that the appellant was traced, arrested and chargod In his defence, the appellant denied the allegation that he had visited the complainant' s premises at the time alleged by the landlady and he denied brecddng into appellant' s room,, but as Idr 0 Macla rightly pointed out the appellant's conviction rests solely on the evidence of the landlady (P.W.2) and that to sustain it her ciridence nut h hn1iovod' I thint tfla-t -me evidence of the landlady is generally believable particularly with regard to the fact that one of the complainant' s friends made 'an unschCduled visit to the complainant's premises that evening and that the landlady correctly described what transpired between her and this visitor but the crucial question is whether this visitor was the appellant0 She did not imow the ppel1nt' s name, she only relied on describing the visitor and her description of the visitor which was not repeated in court in the innediato presence of the appollant could refer to any of the complinn s 'friends Who were id -. / - - 2 to frequent the premises from time to tinà Therefore for the landlady' s description to have the required effect on the case against the appellant, it was necessary that it be repeated in court I S in the presence of the apellwat for hiii to challenge it if need b0*41 St.' irther were the identity of an accused is dependent solely on the description given by a witness, it is important to conduct an identification parade0 In the instant case, the description and identification of the landlady can successfully be challenged on the basis that it was not repeated in court and It was not tested at an identification parade. Lastly, there is evidence to suggest that the pad lock was brOken but•'no evidence was led to prove this suggestion and the evidence of the Detective COrporal. Gregoxy was far from being helpfule These problems regarding the identity of the appellant and the state of the pad lock were not properly considered by the learned trial magistrate and I cannot say that had she - clone so she would necessarily have arrived at the safe conclusion.. She would probably have found that this was a border-line case In accordance with the principles of criminal law these doubts must be resolved in favour- of the appellant thoso appeal is hereby allowed and his conviction quashed, sentence of three years set aside with an order that he should bereleased from prison immediately unless he is otherwise lawfully held Delivered in Court at Mwanza this ft-P- day of February, 1974 WANZA:. UAp. L.MPALIL JUDGE, . fEBRUABY, 1974