19740823 TZCA Dar es Salaam3

__ OF TANZANIA ...... .Lu.LL vUUli'l' f . . . ._ AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 73 OF 1974 ORIGINAL CRIMINAL CASE NO. 244 OF 1973 OF '.l:rlE DISTRICT COURT OF KILOSA DISTRICT AT ICTLOSA Before A. M. Mbaruku Esq.~ .•. District Magistrate Saidi s/o Mohamed Nguyu •...•.•........• Appellant (Original Accused) versus The Republic o •• o •••• CJ •• o o o ••••••• o •• o •• Iiespondent (Original Prosecutor) Charge: Burglary and stealing contrary to sections · 294 (1 ) and 265 of the Penal Code. .. JUDGEMENT BR.AMBLE, J. - The appellant was convicted of receiving contrary to section 311 (1) of the Penal Code. The goods were alleged to have been obtained as a result of a burglary and the minimum sentence of three years imprisonment was imposed. The facts are that the house of P.W.2 was broken into and several things stolen on the 3rd June, 1973. On the 14th June, 1973 the appellant was surprised at the house of his girlfriend and he was found wearing a pair of shoes, a jacket, a jersey and also had a flash- light. There was nothing to show that P.W.2 gave to the police any description of any of the things ha had lost. After some days he was called to the Police Station and shown the thi_r1gs seized from the appellant and after examining them he said that he identified them by certain marks. In the absence of descriptive marks at the time of a report this sort of identification is very weak in that it is so easy to point out marks after seeing a thing and that too in the absence of an accused. , The appellant gave an explanation of his possession. He said that on the 13th June, 1973 he went to his friend'!) Ali Kibwana,and borrowed the things from him and went to his girlfriend. He called Ali as a witness and he supported the story and claimed the things found with the appellant as his. He.said that. he had bought them in Kilosa and produced a receipt: The trial magistrate seemed to have doubts as to whether the identification was quite satisfactory but considered that the appellant's trying to escape from the police and a slight misdesc:ription of the jersey by Ali supported the case for .the prosecution. In my view the identification was not such as to make the conviction safe. . . . . , . - - 2 - ].\,loreover, the appellant gave an explanation that could reasonably be true and this was all he was required to do. If anybody was liable to be charged and convicted, it would be Ali Kibwana. The Republic did not support the conviction. I allow the appeal, quash the convj_ction and sentence and order that the appellant be immediately released. Delivered in open Court at Dar es Salaam the 23rd day of August, 1974. t·[J,~ A I (C. E. Bramble) c.TTJDGE