19860723 TZHC Arusha

• IN flIGH COURT OF TA'i1ZAHI. - AT AtiTJHA0 Ai. .. iWATE JURISDICTION HIGH COJ CRIi:IAL A11EAL NO. 77 CF 1979 • ORIGIi.41: C?JLILAL CASE NO. 1120 OF 1978 OF T.7 DI .3IICT CO. OF Mc:SHI U 1'ICT AT MOSi BEFORI •J L, C MASAi:C'E ESQ., DITHICT/RESIDEiT • HABIEL O,..O..APPELLA ITT

VERSUS THE _ Ri3:.00000..0. . .... RESPO1TDENT ci U DG BEFQHE:. L7SIO::O ; JUDGE. CD4th JLll; 1979 while on High Co. .Sessicns at Tanga 2 . I allcwed t 1' one Rabiel s/c . ierec1 cuesued the con cti..;i ' oct aside the. sentoi.ico..f six years LnpriSonani •-'. on Lim aud directd it a telegram be sent to MoshJ. r:i.sn (Iranga) to them of his imiediate re1ca :.:co that prison vtherin to that date he was rept:d1, otili languishing. hcwever, reserved y reasons f::r o Lrerin and now I fc'i1. dis1:.c:sed of to outline them Li . cou±se of this judcient which I pr'mised to deliver in du c.urse . On 30th March1979 Rabiel s/c Shadr was fomad guilty and convictud of aling contrary to. ctns 265 and 269 of the Penal Cod, it having been particarized that the 1rscn chad on h14th April 1978.•a.t a at g3.30 hours at. Moshi Hotel ..'!:J.n the •Tonship and. J riC p Moshi, Killanjaro Rci u. did ste-al one Motor V:..ile a Dauzi Registration No. URP 095 valued at shs.G5 ; O0O/ the property of one •LTLI.nd Seki Kiwia. Upon c; TictiOn he was sentenca to o is riurisonaent to i cnfirmed by this o o urt. Agrieve bj ,th&t:.d.ecision the ccx. tG a eale4..to this court through r7ices cf. his 1earn cotns1 Mr. P. Msiska 2 agains3 t.. von and sentc.iaoe. • . • c. • e • o0 o.a,• .72 I For the ap..cIit it wq contended before this court that there was ac proper identification that the motor vehiole belonEod. o

the complainant one Kine for assetedl the Rgistratiun nurnbers were missing frm both the front and rear sections. This. argument ,co1d easily.be explained away for apart from theregistratjnnuibers which are fixed to a motor vhicle and which can, admittedly be vera easily removed, there...are engine .nd chasis number which :are engr&ved on • tfië' relevant ts oL...the motor car. and the same numbers S are also recQrd - i in the Regi.stration c'rciof the said tor vehic1. In the instant case olJinant successfully seccrod and tonderd the re±stration card of that motor vehic1- o the trial court which had a.pJ,e opportunity o c etc them and the said i tcr vehicle wa$ brought to the c.ur.t compound and the rtal 'bi± took . ... opportunity to obsoi've the sae. •: -. Under thoec circumstances this courtis satisfied that t. he trial courtr - erty satisfied itslf atothe identity and ownership Consequent1 - this first ground of a, cal is discarded as.bei of nosubotance at--all. As regards • battery it is true that batteries are common items wi can be :bOht anvhre and unless identi- fied by their SL.L numbrsit is difficiat to say any one of them belcing to a centain type cEil easily be nglcd out fr1ii r h€.r of the same tyc. Thus the idenifioatian .f the battery in this ded left •- lot to be desired, and fc in the decision of RV Heniy Thrahim (Mzavas J) this feels that the idoitication of

the Cifu 40 battery in this cadid net excludo clear Jossil?ilities of, mistaken 1t L u TO support his C rntion on this point the learnei cunse1for the appe1lthtcited cases of RV.Adam Iddi. aid Ancther (1976) L. R.T. 18(P.56) and 11ohedIsmilv..1197LL. R. T. 31 1441 The 3r -gr...ia ci ef: aj2peal: which is vary crucial in the decision of this. aeaa is. an-assertion by .:tIlC learned 12 ) cowae1 for t ±iaflt that the Jrned : tt'ia1thagistrat.; erred in law and fact on - iie q.ietion of finder print evi.2oce on record. It was 'vbinitted for the ap11ant . 1Gre was no credible. v.id €nce to show 11- that the left thornt alleedly sc to, be that of the appellant was 1' LJL. n a small window cn e driver's side lilsido the nioto1 vhcle. It was furtir C ntended. that there was a prcbo. ty t..aet it was found outside. Two witnssës, P. 1.2 P6 1 103 accbrding to appellant's learned counsel s ccxredicted thenselvee n the iccation of the finger DI L1L and, that each contraC o bion was overlooked by the trial grate. Stanslaas 9 eduialy 9 stated that the small side u on the right driverts side was broken and the learned ccLsisel for the appella contended that if that was b r o :cn then finger prints vii.. i1d not have been fo and on that c. ular window glass. On the other hand there is the cvc ice of Wilfred who sas at page 8 of the proceedings t right side small wndw had some finger prLnts and

thc i I ccurt did not make a fjnding of fact whether thc fii rints were outsid nside. A rogad. . cvdence of Wilfred n' L.arned counsel fdDthë apila:; adbthltted that as he vs beilt to secure the conviction J te apcllan -t he was e ,j ness with en intered± f L n in the case ano. te h...s evidence called for clos - r oratiny before a convc1cn was pint€.d on it and s c..e Paulo Mrithi V. R (l97J I.R.T 34 was cited in oaocrt o± this argument. A rc.,a±ds .vidence of tho finci print expert one Nwanakizle cn uas' tendered in his absncb under section 154 (2) 1 ic Criminal Procedur Ccde the learned unsel for ti e ao...Uant subrn.ibted that is mandatory th trial tete to inform the accused person that he hd the if, he wisned for the .ort to be r hn cross-exine h on ii s export evince bot jn istent case such a rnt was not diclosed s to Dclldn. To support nau VIOW two C&SOS iorc cit.d JchIo Desas VS. V.N. -LJ.934) Vol .1 C 9 l3 ai.d ab1r cdso cited (1954) Vols21 end 22 .t, court of Apea1 hc that the - -- -------- - --- 4 - competenoc of i xjirt witness shoule U shown before the trial court. Ar ,Ytiihn furth..r the learned couiisel fr the aellant said that the finer prints could have b.. n cutide and if èo the touchLcu.ld be accidental erucially so when there was only finder print and cited. tho case of NazirdV.RL1962) E.A. 346 to su:,.rt that contention. Two ladies 'er aJ,,1eed to have

5€Cii the prsoh who had drivon the nH;cr vehicle to where P.W.2 eventually saw it b.ut 'for Lscl.ced reasons none of t.ie two ladies va'' called before t :.; curt to testify. as t. th identiiy of that P'rso. •. On his part r. L1awa,lea.rned State k'torney who appeared for th. Rycndent (Republic) dt.1 not support the cnviction die ...asufficiency of evid:LcO to lin1 the appellant with the .alleed offence of 'vhicl theft. For similar. scns co.npurrently.v coC. by bOth sides of this appeal that thL co against the aj.pellant was n. - ie d beyond all reaoible doubt. it is for th reasons that this c'uit allowed the ap:.eal of the appo'ant as, indicated abv,.. 0 Delivered ju& .•n'court at is day of . by.. •. • . • . • • • • . . * . . as writ.:a by E.A.IUTJO JIE0(N.B written Q.L 10.10.

1979) For Appellant: or Respondent .i'ubJJc): Date: 23. 7.1936. Corain: E.M.K. Rut DR. Appellant: Absnt. Resp'ondent:Absen -;;. Both duly served. ''Court.: Judgennt of the court •delivred in (pCn court in the absence of counsel for, both sides duly served, this 23rd day of July 2 J98.6. . E. 23, 7., 1986. 0