19880826 TZHC Dar es Salaam

IN TH.ti HIGH CGURT GF TAN~RNIA hT DAR ES SALAi-1.M J<.JJJ:1.!!;LLA'r E JUHfol.i ICT IUN HIGH CvUH'i CRIMINhL h.Pf'i;.i-i.L NG. 75 UF 1988 1 LJi<ll:ilI\u-1.l, C1-<IMINAL CA.S:E. N0. 241/87 vY TH~ LI8iiICT CGU~T lJF MUHvG0rlu DISTHICT MUJ:<VGU.i<U BKFGJ:-£ C. 1,1. SHILUGILi. BS,t, J-1. £ 1 PHII~CI.f->AL LIS'rlUCT Mi-1.GibT1<1-,'l'_t,_;. Hl-i.btll.L>l N.H..SbUHO. 0 0 0 0 O O OD O O DD O O O O D O O O APP.c;LLANT (Original Accused) versus 'i'Hii UNI'l'.ti1' RtPUBLIC ••••••••••••••• RE.SPvNi.iEl'JT (lJriginal Prosecutor) J. U D G M 1: N T this is an appeal by Rashid Nassoro ag&inst conviction for burglary and stealing anu the concurrent sentences of three years and twelve months imprisonment. 'l'he on 1 y evidence . against the appe 1 lant w2s that a hurricane lamp was found in his house one day after the complainant's house was broken into and several household prop,rties including a l~mp had been stolen. The complainant is said to have identified the lump because it was b9nt and full of smoke. It is on record thot the compluin&nt identifi~d the lump after she had seen it in the appellant's house. ~he appellant, on the other hand, suid th&t the lump wus his property and thGt he had bought it from a person whom he nam~d, un<l who gave evidenc8. That person, Augustine Albert, told the trial court th~t he sol~ the lump to the appellant some four years before it w~s recovered in the appellant's house. The witness said he identifi""d it beca.use tlk 0 uppcr cover is bent on one sideo" fhe question is ~hether the hurricane lamp was prop~rly identified as being the complainant's property. It has been held by this court thut the compluin&nt should give the description of his stolen properties before the properties are shown to him. In l<'µdhili Mohamed ·v. Ho 1974 LHT n .. 5, for example, this court said categorically th~t a person reporting theft to Police must be celled upon to describe the stolen prop~rties in full and that should include "distinguishing features such as si:z:e, colour, defects, reparation, etc.u Thut is important purticularly where the stolen properties are the type which can be readily available in the shops. Now, in-this CD.Se the le.mp found in the appellant's houGe is an ordinary hurricane lump. compl.:,.inc.nt did not give the description of the lamp Thi:: stolen from h<:,;'r house when she reportl::d the th~ft to the Police. bhe saw·a lump in the up;E:llant's house and sh0 claimed th~t was - 2 - he~ stolen l~mp. ~h~t is cl0ur from h~r own evicence and th~t given by th1:1 f'olic~ vfficer PWo2 Letective ·.Sergeant Grace. ln the circumstances it cannot be se:.id tha_t the lump wus the one which 'was stolen from the complainant's house as the complainant had not given the description of her stolen lnmp before it wus show~ to her~ Further to the foregoing, the appellant culled a witness who supported his evidence that he had bought that lamp some four years before the complainant's lamp was stolen. In my view, the lamp found in the appellant's house w2s not proved to b€ the la~p which was stolen from the complainant. Consequently, the prosecution fuiled to prove the charge agcinst the appellant as there was no other evidence to connect the appellant with the offence. This appe~l is allowdd. The conviction which is not supported by the Hepublic is qu~shed und the s~ntence is set aside. The appellant should be rele3sed from custody forthwith unless he is otherwise l~wfully h~ld. I Wo J. MlilNA JU:UG]!; 26th august, 1988 cimbakalia - btate attorney, for the Kepublic ~ppellant absent.