19831126 TZHC Mbeya 1

PZ AT BETh- AP.E:uTE JURISDCTI)iT II 5 fj HIGIL COTJT QRli..:CNAL APEAL N0,44 OF 1983 - (.0RIGETAL CRIi'.nTAL C N.3l OF 1982 OF • TU Di;YICT CJGiT OF JF.INiJI DISTRIdT AT IVIAFI . Before M.G.G. Kajeri, District Iagistràte TFRE?UBLIC versus S ' :RESONDENT II

JUDGIVLENT Chargeb: jst comi -tg mirgrarye/s.294(l.) of the Pn Code Cap16 ofthé LaWs; 2d, count: -St iflg 265 f the PeiiJ. Code Cap.lb of tLavis. KATITI 9 The Dis - rict Court Iringa, was witness to the conviction among others 9 of :etef T. Uko - i, who will herein be referred to as the aD)dlint,'for the offences of burglary, and stealing, The end of the trial saw the awardin to tne accused threj years, and six mqnths imprisonment on 1st and second . 00unt respectively, sentences to ran concurrently. The appellant aggrieved has a realed against conviction. It is not controverted nor chal1enOd, that, the night of 8ti Septcnber 1982, saw the burglarious entry of the compla—. inant's house, an'd the stealing of various personal property. Obviously the question that was, and now is anxiously being asked, is, w7 io was, or, were the culprits. The trial magistrate, did answer the said question, by i-iëttin the ape1iant and others. This tria iaist:'ate's cäc1usiin, is hein; erivaly challenged by the ppeiicint. Hence 1 therefore, to put it to the test On the evidence it is an immutable fact, that while we easily acknowledge that, there w? burgLary and stealing, we hrc no dir .t ovidojce, as to wh was rsponsjb1e. We há'é therefore without much choice to elr oi cirCutnti 'I evidence, aii aspcct,.that, I find with stisfictioñ .i4 otscape the attention of the trial ma1strdte 0 May be for a

reèat 9 I daie say jt isrie and fárniliai law ; :that, hré. the prose- cution relies on circuosGa1c1al evidence, it has the burden of makin, sure, that such cvjdencê ive rise to an inference of ult which is irrestible, and inconj,atiblo with innoce.ce, r Let us see, ,f the prOsecution has dchicred tnq In the exercise of seoin3 what circumstantial evidence there is, I shall with foIl ef±ort, try 9 or far as 2osslble to avoid mentions, of other cueds srve vvlaere the evidence in respect of ne P.ccu6ed it..rtviines With tkat of the ae11ant. It did end. rid, )eS .xfr cii]lene thit uon discovery of the perctrated ciris, .uc. 'iicins &ro tDaino apon the apellarit 9 Lë a: - e'Jant wnosë search, riecr ave birth to suspected re.:'.ls, '.ioc : to tho serchin party, that he ' sUs)ect.' t:c ?i; ........... co.se1o, coid Lcuve been criminaly involve . •I eoarcL Dl: he 2nd a;d 3':. accuses, discl.ose& prdpertios that te rc 'ori:.d. t: h:ve o.'i: . .citified by the compl- ainant0 \1ii tic a.'c 0:. tO )c... i.a'at house -was fruitloo., 1 . ? C. O' L a co .o his absence, ..ledto a scc . .... hL.ii L .o:. the :sciz -:.'c. rrrr, .that...the concubino 2W4 cIair1iéL :ad boen hr .a rein by the. a4pellanta It S.L1O on a -i 'a tieref are implicate waat s±oulct the appe ct, if relevant, are tae iaress and the mi.tror. Ittdeed the tria ia;lre did s,p iLe ua, far 1 L 4ected htthe1.on.the. same thus, and

1 quote "Te first acu3ed i o one 'ho took a inattressan.d a rnirior -bo thehorne:'of.li8... cunci D1nC 0 he mttres arid the mirror were laer 1 entifiod as the )roporJ or the co1a)lainant. 8o his e:planation that .h. had seen the 2nd and b1L accusd. áloi'te carr:•rin, the stolell proDrty is a me after thouyht 0 ior the first ac,cuae +d. . have been found with part of the to1en ;2roPrty only to days fter .the offns had. bec:. camxatted, in tne aosence ny other e:planation he cannot be )bs )lvecL the CD ilc G; in this matter 0 . The obviais i . iia;ioa iia encerb i that the tri4 ' .'- mateLered .te teuthaony of PW4, but laboured no more, ,r±± e 'he tiial ma g istrate :uiay ha've beei atlibertr to blieve PW4, he was not entitled to. t*alce --if for ranted, thasimply b'ecuse the appellant tooi the things there, tlierefort e he said pr000rtes were stolen, anc' stolen by the ae 1 Lant, and so after the FolLow1ft such a course inla make the law of lo,ic revoi.t for beii 1aisused, Puther, the trial ma,gistrate, foil lon in isircL'n sJ4on a nere fact, that, the cnainant uenLifie' the riattress 1 anxious microscopic exa'1iation :i o he rocori , lOSS not veal anywhere, where the co lsu-iwat c1t so. The trial isLrae, fLlrthr seriousJy iiisircted t soif, 4 r tr(-, in tn ttos as one of the iLeiis tlert fro i tLe co jlaina -it's noiseI accuired. and used oppoHunit, to u.icci: a ) - 1c1ls o±

offence, that list the articie, StOlOr , I &o oven cr1)jLlousj na med the crnüamnanb's tost'on an I h o ec e iitii sais'action, that, not even a oon is llaJ c cit cr to no c2t that, the mattres was one of the s )Jn 1 e o or oatj o ned by the' o1) 1aii1n±o I WOILJI for, reasons ;ibov.finaiiyike:a f'thd±.ng that bhe 'mattress was noi iJe r stolen: from. the :comiain, an-te ilous 8 i nor a subeut )i lie If part of the aSLICTecl stolon ro'1r the trial magistrate had in iind ;M hteraJic. 'tho. e.t'r h'"ei !'h àbié showo, how'misdirecoi hè .a:h r .to wss o how about the oirror? The appellant caibed DVl Af'ania d/o Chienga to confirm how the appellant bo owo. a mirror from her -.tia.isshe denied, Because of this, end if she is to be believed, con..00n eise . would sttggest, that, he axp'int ha lied. t lying is r.Q substitute for pr)of beyond reasonable Jobt, for whether the ccused has lied or not, the onus is still on "the prosecution, tprove o the case bcond reasonable doltht, • nor is a iib;proof that the proorty involved belon tq the owner s Then, how ho we 1moW that 'the mirror was t]e propet • of the complainant, fie asistaiaoe to doter..aine tht should. obviously code froa 'iropor identifiction and prop identification in a cri.oinal trial, noons showing mar or other obvious feat...res that undoabto.l:: show beyoitd rson- able doabb tuat, the c .)r:lainant is the osrner 0 In thtq

very directoh, and as to procedure, I feel no quaJs in qtot4g HAMLYN J (as ho then no in HENThIY G2hVt V. H ( 1967 ) N.C.1\ No • 120 He held .14 - '4 - ..'he acceptance of these bland assurances by the coirt la:rs the vcy 3Jcn for many dangers, and such iicntificai.' iou15 ciot fr in any •wa be aôcetable evon. in "1vLl court • -0 *, ;*"* , a In a. criminal case, Qiarnant shou1d:beasked for marks onthepropery beforeitis shoa to hifrT.viiêhth'é' owrierhip caii. establi.hc. e, qo:;rt beyond reasonable doubt. 1n this case, the comolanant only c1aiied, to have ictentified the Anirror, without oing further. This was obviously inadquate — ad us beln L, the cose, the doetre of recent possession has no foundation opon which to stn[, to sustain an assential irresistible infereoce, that is ue9mpatzb1e with 11nocnce, in the crime charod. lii any case, I would be highly a.ismayed to find the appollant iould only be found with a imirror out of the lot StOlLn. That being the O.se this dPpeal has to be &hd is alIowed convictior. quashed adr: sentonce set uside. The appellant to be set fr'.3, unless he s othorise 1ogal1y hcld Tjiliirerod. this 26th day of ]'overnber, 1963. fli1 Katiti jj) ry i•'1J. c ' - - I certify to be a true copy on the oriina1. DISTRICT Rc1ISTRA • ' ' ' b