19730914 TZHC Mwanza 3

• e- ') —---' --- IN THE HIG-El COURT OF TANZANIA AT NWAN ZA APPELLATE JURISDICTION CRIMINAL L.PPE,:"L NO:283 OF 1972 - ORIGINAL CRIMINAL CASE NO :115 9 OF 19711 OF TilE DISTRJ CT COURT OF MUAZA DIS 'ICT iI MUAITZA • BEFORE: N. I.N. MU'NIJO, ESC:., RESIDENT MiJ-ISTRATE,'.: VITALISNYALdGA,.. ,..'."..•...., ,'2EL:ANT (ORIGINAL ACCUSED) S VERSUS THE REPUBLIC....... ............... RESPONDENT (ORIG'INILL PROSECUTOR) ./ • JUDGMENT: EL-KINDY, J. - VITALIS ITJBJdTGA: charged with and coiivicted of hur1apy, and stoaling contrary' to Sections 2940 ) and 265 f the Ponal Code Cap.-1'6 on two separate ccun'ts He was sentenced to concurrent. torus of imprisonment of 2 years and" six months , with the statutory corporal'punishment of 24 strokes, as it was than. Ho appealed against cc,nicticns, 'c-iitncës and crdcr. ' The learned State Mtorney, -Mr. P, Ntabaje, appeared foi the responeont, Republic. lthc,i1n uo apicllnt in o --I- his desire to appear, if ha 1ras still in Butiaba prison, ha" dould' not be served with .,notico of data of hearing as ho might ha completed serving his sontonco, Although, probably, the act of 'hearing such an appeal iight coneolo hearts,. it will not have 'any prtica1 effect' on the appa1l..nt since he is free already. Nerthe1ess, in the abs'nco of any indication to the cont'rary, it is tine duty of this court et hoar such anappeal." Nanamba '(PW.i ) lived in house No.78, in the Mabatini area - o± Mwanz a township. He was a bu sinessan, m On: the 11th of Novorbor, '1971, at about 8 a.m.,he left his house, afte r prppCrly locking the entrance doors, and proceeded to his place' of business at tl market. Ho- rctu,rnc:d o:L' about 8 p.m., ond found one of the' entrance doors broken and left open.,. Upon entering, he found his Banco bed, mattress,; bed shoots, and 4 shirts missing from therein. Mrnnamba estimated that the total value of those goods was 1s.400/=. And, acting on 'info'rmati.o'n received, Mnamba obtained the assisthnce of Special Constable Kaloli Alois (PW.2)', and proceeded to the hiuso of 'tPo appdllant, who was his'neighbour, for the purposes of search. They arrived at 7 p.m., and' they found thd appellant present. This was three days after the alleged house-breaking and stealing. A Vono bed (Exh.A), a mattress (Exh.B), a'jacket (Exh.C) and bed sheets (ExhD) were found, .JJhen Jnars .çia;oci, tIt, 't,hpy ye,his stolen property, thOy ic'aiôI'itly Th'h ed 1 hIi' c'i't.d as alleged. '"• A 0. . 4 ...2.... . . . . - 2 - The main issue was one of idontity of the oxhibits so found s The appellant clairiod that they were his iersona1 property. Manai:tha alairaed them. It was for Manaba to satisfy the trial c'urt that there was no roo::naile dcuLt they were his stolon property. MoflaDba said tb.t his bed wo.s ci 'Banco" trodo mark, but the bed found, was nf "Vono trcIo mark. Thorcfcre, the bed. (Exh.A) had nothing to dc. with the stolen tod of Monamba. The jacket (Exh.C) could not be the property . of Mano oba UOCaUSO it was not one of the iter.is he claimed had been stolen from him. Equally, Manamba did not specify how he identified, who artttress (Exh.B). As for the bed sheets, Manamba said that ore i them was white in colour and had a red thread rwnniiLg through the middle. The curt record showed that the eark wme o inted out to the presiding magistrate, but thero is no record. that such thread lid infect exist or was suificcnuly specific. The 1olnt claimed that it was his bed shoot. It does not app;car that the other 3 bed shoots wore even described.: The learned trial magistrate held that, by the demeanour of Manamba, he as satisfied that he told the truth end accepted h i s evidence. In declining to support the c'ction, the learned State ttnrney argued that demeanour cf a wtnoes is unsatisfectory, as a basis, for believing him, anc_ that it was the idntity which should leave no reasenailo doubt het thtl item identified ras the one stolen from the huso of ManarTha. I agree with the learned Stoic Attorney. Demeanur of a witness is an aid in assessing credibility of a witness. It is not the principal factor to ho taken into. .account The fact that Manamba wos impressive js inporte.nt, hut it was for the court to hold whither, in 'hocircioxist,encos of this paso where only one item was alleged to 1:e identifiable, .nomba (had infact. identified what he claii':ed to his property, end this 1he trial court did not do, end, as aresult, it left the impression that the learned trial magistrate would not have accbptcd that Manamba had sufficiently id orotified the bed. sheets hod. .t nat been for his impressive demeanour. The appellant ws castigated for being unable to produce receipt to support his claim, Apart from the common knoviedge that it is very rare for arlyl)edy to be able to produce receipt icr goodS already in use in th house, it was not f o r the apollant to do so. it was for the ersecution to prove that if the prosecution was to prove beyond reasonable, doubt that what wo.s found in the house was the stoloi raperty of Manamba. The fact that .objocis, which wore inconsistent with the description of objects Monariha claimed tc. have been stolen, were taken raised considerable doubt as to his reliability as a witnoss inspito of what the learned trial magistrate held. And finally, Mananha produced a receipt which he .cldiraecl he obtained when he bought the alleged hood and mattress, and the learned trial magistrate gtvo it SOjOG weight. With respect, the so..id receipt had no evidential value whatsoever, as it could refer to anybody since it did not have a none showing that the purchaser of the said item was Manamba. I would, therefore, agree with the learned State 1 ttorney that, having regard to the evidence on record, the convictions of the apeollant canuat be allowed to stand. ORDER: The convictions ore quashed and the son-tences and orders set aside. If the appellant had not infact boon released from rrison, ho should be released forthwith unless othorwis e lawfulli hold. Delivered in Cout, at 1"lwanza, on the 4th 5.eptemhor, 1973:. . MWJNZA Z. N. ;~KINDY 14th Sopterloer 1973 , . JUDGE. Appellant,. .abscnt. Mr. Rutainurwa State mttocnoy for hepublic. -