19841027 TZHC Mtwara

__ __ IN THE HIGH COURT OF TANZANIA AT i•1TvJARA ,, APPELLATE JURISDICTION HIGH CuURT CRIM. APPEAL No.50/82 ORIGI~AL CRih. CASE No. 51/82 OF THE DISTRICT COURT OF MASASI DI~TRICT AT !Vi.Z.:.SASI · < Before A.Yo ~IBONA, Es~., Distr~ct Magistrate SWr1.LEHE jG'l'h ••••• APPELLANT (Original Accused) versus THE REPUBLIC ••••• RESPONDiNT (Original Prosecutor) J U D G ~ ME N T MAINA, J. This is an appeal by Swalehe Jota against his convic_tion for burglary and stealing for which he was sentenced to imprisonment for three years in the first count and six months in the second count;, The complainant, PW.1 Andindikweje, said that her house was broken into during the night on 28.2.1982 and various clothes, radio and other properties were stolen from the house. Later, and she did r..ot say :fter how lone;; 1 she saw two small 9ir l wearing gowns which the witness ·identified as being those stolen from her house. She said" she sent the girls _to the Ward Secretary. 7he girls did not testify but ·F\io2 Asha. i".lly said that she had bought a. small gown from the appellant in Barch 1982 for Shs.30/=~ Asha;s daughter was arrested wearing the gowno f'wo3 Bibie ,~ganga also bought a gown for her daughter from the appellant on 3.3.82. That gown was later taken by the complainant who claimed it had been stolen :from her house. The complainant pointed to several marks on the go1ms and· that was '. in the course of giving her evidence at the trial. Both PW2 Asha and PW3 Bible said that the complainant did not point to any identification marks when she reported to the Ward Secretary after the girls were I arrested wearing the clothes. o•tl•1:1oe/2 2 .. ' •rhe appellant's defence was th_at he had bought the gowns at Nachingwea for his daughter~ The gowns proved too small for the appellant I s dau~1hter and so he sold_ ·them, to the two pros.ecution . witnesseso In the memorandum of appeal, the appellant-hus complained that thG cornplcd.nant had been given. the two gowns after she found the c;irls v✓ earing them and so sh~ kept the gowns all the time ·_until she testified in court. so the ~pp~llan~ argues tl1at the tomplainant had n ll c..-1e c.1pportuni tes to see the marks on the 9owns and to point them out as she gave her evidenc~... I· think there is force in that argument. i"iy learned brother Judge who admitted this appeal to pointed out that the way the "exhibits" were handl(~d and marked would appear unsatisfactory. The learned judge posed this question: ."Was the ownership of the exhibits -conclusive1y· established? ·I have reQ.d the record of the lower court very carefully. It· is not shown where the two-gowns were kept after the complainant found the girls wearing themo 'l'here is the evidence that the complainant reported to the Ward Secretary but it is not shown who kept the gowns after the Ward Secretary had·seen them. So the appellant's complaint that the compluinant was allowed to keep the gowns until the time she testified remained unchallengedo What the appellant says about the handling of the exhibits could possibly be true as the prosecution did not adduce any evidence as to where the gowns were kept before the trial corn,.,encedo A comptainant · should not allowed to keep properties whi~h are intended to be tendered as exhibits. Such exhibits should kE::pt with the Polic_e or at other places away from the complai;;ant 1 s reacho This is particularly so when ownership is being disputed. The way these two gowns were handled before the trial commenced was indeed unsatisfactory. The complainant had all.the apportunites to study the marks and-repeated those marks on the gowns when she gnve her evid_enceo ·rhe two witnes·ses whose daughters had beef, found wearing the gowns and who had in fact bought the clothes from the appellant specifically said that the complainant did not point to any identification marks on the clothes. That ·.:ends to show that whatever Plarks the complainant talked-a-bout·in the trial were those which she had seen after staying with the clothes~ This court he.is said on several occasi.ons that a complainant should be requ~red to point any marks of identification on her prop·erty when the complaint is made when the properties are recovered the marks .0n. the propsrties w·ould then be compared with the complainant's marks. Even if a complainant finds the stolen properties as a result ••ooo•oo/3 . Cf 3 of private investigations, those·properties should be kept away from the complainant until the trial commences esp,~cially when the ownership is disputed~ It cannot be said in the pr~sent case that the complainant identified those gowns .. The evidence clearly shows that the complainant merely repeated what she had seen on the clothes and that she did not mention any marks on· them unt~l the trial commencedo I have also noted that the gowns-were tendered as exhibits by the complainant hGrselfo That is again unsatisfactory. Exhibits .should be tendered in court by the Police Officet or the investigating officer in whose custody they were kept. But in the present case the complainant produced the gowns and buttons as exhibits, presumably because they were in her custody all the time. At least there is no evi.dence that the gowns were ever handed to. the Police for custody pending trialo Since the only evidence against the appellant was the finding of the gmms which as l have said were not properly identified, there is nothing.else upon which to base a conviction. There wa~ no reliable evidence to prove that those were the stolen prope~~i~s. This appeal is allowed. The conviction is qu~shed and the sentence is set aside unless the appellant is lawfully held in other matters he should be released from custody forthwith. J'UOGE MTWARA 27 .. 10.1984 I certif} U1~t this is a -true ~nd correct copy of the original. \ Dl!:)Ti:<lC'l'' HtGlSTHi-.R