19831126 TZHC Mbeya3

i . , - .. I . 1~ C IN T7fl HI(.TH COUItT O' TMIA

AT NBYA

APPLLAT JURISDICTION HIGH COURT (IdININAL APPiL NO. 52/83 ORIGINA CRhI?INAL CAfl NO. 225 OF 1981 OF TT DITICT COURT O SuI'E3AI&NcrA )ISTRICT '.T S JtdiG\) B1FOR S 4C iIAkQNGQ- SAID CL1;tLNI . ".... . . . . . . ......... .APP9LLJNT versus TH RPUBLIC .•. . . * .. . •. . . .. . . . . . . . ..SPONDNT ! -==-- CHARG 1st count: House - breaking c/s 294(I) of the Penal Code Cap. 16 of t1 Laws. 2nd count: Stealing c/s 265 of te Penal Code Cap. 16 of te Laws. aTTLtT. iTJD(r]. TTT S.rnbawanga District Court, witnessed the trial of iaid Se l e rn art who shail heroin be called the appellant. The. said trl a .1 culminated in the conviction of bho appellant as charged, and henQe the sentences of three years, and six months nprsoment On counts (I) and (2) respectively, sentences to rat& Concurrently. The appellant aggrieved, has appealed against ,vtjon the only meaniflgful ground of complaint being, that the property alleged to have been stolen after an alleged house-breaking 9 were 1-is proorty, and that, the same were ot jdeitfied to be the property of the Government. The facts of the case under ti-io microscope, fall within a short curipass. It goes undisputed that the day light of 29th. of Oct.ber 1981, ¶.iitnessed a bold brearing into a Government quarter, and the ctealig of 17 pillows, OnC of coach, three offi.ce cnairs, one mirror, two riatresses, a piece of khaki cloth all valued at

cTh.8,000/=. Undoubtedly suspicions were u.tjately trained UpOn t'e appellant, who ias searcied On I/Ia4I98I. s a result, of this search wo beds 7xh.B, a set of steel Coach x1i.C, three office chairs xh.D a mirror a curtain xh.F, one wooden coach xb.G-, were recovered from te.e appeflant's house. The appellant did not anu does not cOntro1ort the evidence that udiably prove he was found in possesSiOn of tl'ie exhibits, tendered. ill ho helpfully did, and does nOW, is to contend that the properties tere his oj property. Ie tendered a a rir" rc '• . S S .. .4 p 4 - cash-sale receipt whose import, is that, lie bought a one sofa, set at ss,4,0001=, a d a sofa chair at slis.3/= - totaling shs.439'O/= - from an aictii at Kariakoo Dar es c3alaarr. The trial rnagis'trate while alive to the crucial question of identification, rejected the defence, fOUn the sare to be prperty stolen as dlleged by tli.e prosecuI., and convicted the appellant as charged - and hence this appeal. The appelAnt did contend in his memo of appeal that, the properties were not identified to be the property of the Governineit. This'aspect, was not ignored by the trial 1'agistite, wh'S in hiis view PJ24and F15 identified the property in questioi. Ind@ed it is an issue, that, I should myself put to the test. However, let us first see what in the eyes of the trial magistrate amou,ted to proper, and unmistaken

identification. The extract from the trial riagistrates judgrient h ere under reproduced, does demonstrate tli.e working f t-'o trial magistrates thinking, and it reads:- I't.flien P115 was transferred, thus va cat ing the hous e was occupying he handed over the keys to the honse to P12. THerefore PI2 was able to see what was in the house - that is furniture beds and o O.n'T1 so forth. T so seeing the' furniture, he obvi.usly noted tbem............ I have no doubt that P.J2 bad, an easy excess into tl-ie house whice F 15 used to occupy lie Had easy and ample time o note th furniture before they '.iemn stolen. Tud it not :en, that P2, "iad not properly noted the furniture before they ce Stolen b cul.i not hfl;re detfied the same so easily as bc uj... " nd in respect of identification of ';' - .o sure property by FF5 1 the trial magistrateTs thin':irg takes a similar course, as b.c will himself demonstrate hero under, and I quote:- :.,s regards PJ5 indentification of the furniture ewbibits B to G-" be told 4"is court tl'at be used the sane for a period of 18 months bo:ore be was transferred. ' or one to use anything ± a ersoral possession for 15 mont 1's, is such a long time, t1 at ho will properly identify it easily when it has n.o special mark leave alone with one." qith due respect, while I but er:o, that, for purposes of identification of property F12 ad p15 are material

witnesses, th e fact that p12 ray h ave access and scm the furniture in the house, is not enough, nor does tT. fet that 15 was clairsdby Usinr similar property from periou. of ei:Thteen months amount to proper idontilication. I)otH w:tnossos cured +S' ' - " - • - ,-. -- 1•- . • - :• ability to identify the property either because of oe's acccss to the same or his stay in the said house for 18 rnontis. That may well he feet oecould ave access to, or 1- ave been with such questioned ]?roperty for years, but make a honest mistake as to their identification, this logic apart, 1'15, was not unequivocal in cross-examination when 1 e admitted -hhat, t 1ie said properties could he obtained from other sources. bis should have put the trial iaistrate on guard, for untested assertiors like "I have identified them" are very usfo, and I can fifld nothing more relevant, than the holding in the case nf - HETThY (V8 V8. II (1967) II.D. No 129 that relevantly rans thus,arid. I quotes- "The acceptance of bland assurarces by tho court layc the way open for Puny thtn.grs and such identification could n.O O Jr arT wT acceptable OVen in a civil court ........... In a crininal case, clairan.t should ; asked for rarke On the property hefor it iS ;h own to him, from which th ownersip can b established to th' court heron.cL reaJonabo doubt.' In this case, no rJ:e w - re pointed out by hc- claiming

they could identify the promerty. • ll the agistrate did, was to accept that F12, had access, and F-15 had use o: the property, and proceeded to illogically infer that, that meant impeccable identification:- The maistrate in so acting was obviously off-the mark, and I accordingly find- that idntificutiort loft alot to be desired. Altiioug the logical conclusion that the above aictates is that, we cas riot .o alon: with ihe said vjdnC as to identification, the evidence ?ieg generally circumstantial, I prefer to cast my nets wider. Tho appellant did ad'it possession of the listed oxhibits on 51/10/1983. Tis rain defence, is that h0 sought the s:'o at Kariakoo auction, most probably on 11/1/1980 - t 1 C Late reflected by the cash eceipt xh. D I. But this receipt speakes loudly of a " sofa sot', and "a sofa chair" - wt - at ever they mean, and, or con.t1tut. This receipt makes O rintion of oahor items, like )ining or office chairs, beds, r, ittress, mirror, mosquitonet that the appellants admits were also seized-. if J s•ve to co by e appellant's dfe- ce, that, be bouybt .Tee earns from a Rariakoo auction., a .]sLco that, finds no mention i- the apnellants receint B I, one is tempted to make inquiry as to why, if the appellant was so c.reful as to et a rccejpt for some • . • • S - iter's. S-iy did he exclude, tie above itemiseci articles, bought claimedly at the same time, or roat

pbably in the same bid, cf the sale was by bidding, which I believe and cauction do. 0other aspect, that can 4ardly be explained by the dootrine ficidce, that, xhs. were admited by found in the appellantts possession, and yet tby are the Only itemised properties allegedly stolen on 31/10/1983, assuming for the sake of argument, that, the appellant purchased them at the auction, I fail to convince myself, that, the same appellant was the only lucky bidder, to get items that nature wise and namewise are of the same 4uantlies as those that are being questioned. But argument for sake of it apart, I find the circUmstance of the case finger pointing to the appellant s receipt as false the property as having iriginated from the broken into houie, as a result of theft. In conclusion. I uphold the conviction - I would hiva been minded to impose :i sentence of five .yea:'s Iprisonnent because, the charged claimed that t".e value of property stolen was shs.,8,000/=, and as by reason of such value, a sentnce of three years imposed by the trial magietre.te would liae been illegal. But the record of proof, having been silent on te value of such proof, I am con.ton.t to leave the sentence a bare minimum, and therefore lave it ufldisturbed. appeal is totally dismissed. Delivered this 26t 1,i day of Tovernber 1983. / 7111 [ Kti..ti Judge. Court: Present (I) r. IApin.ga State •&ttorney fr t Reb1ic. (2) lppollart absent. - I certify this to be true copy of the original Judgment. V1 p''rniYim 71 1, T'7 1 u .L '. - ....4. JB• Y;.