Sijafika Petro vs Republic (HC Criminal Appeal No. 17 OF 1978) [1978] TZHC 342 (1 January 1978)

111:. IN THE HIGH COUFT OF TANZANIA • AT ARUHA • HC. CRIMINAL AFAL No. 17 OF 1973

• (Original Criminal Cage No. 698 of 1977 ofthe District Court of Moshi District atoshi) BEFORE: R.T. LUKUTf .,,. DISTRICT ILGISTRATE SIJAFIKA PETRO- . . .. . .................APPELLANT versus THE REPUBLIC ......., ................RESPONDT J U D G M E N T MAGAI\TGA - J. The appellant was convicted of house—breaking and thefE His conviction was based on the evidence of the complainant (pw.2) that after the appeilent had been arrested he found him with his stolen trousers. Thc other evidence against him was tiet of a frther and son (Pw.3 and Pw.4) who sttod that the epe11ant left some articles at their home which were 1at27 idcntifiedby Pw,1 to be among the things stolen frDri his house. The police officer to whom Fw,l reported the breaking and theft testified that the report was made to hIm on 1/6/77 but Pw,2 did not give the description of any of the stolen property. On 1//77 the appellant was taken to him under arrast and it was then that Pw.l claimed that the trouser the appellant was wearing wGs his. Pw.3 and Pw.4 testified that sometire in July of the same year the appellant left t their home a basket Eontaining a pair of shoes and several clothes. ThQ appellant did not go back to collect the basket. In August of the same year Pw.l went to their home and identified the shoe to be arnong the things whIch had been stolen at his house in •June of the same year. The learned trial magistrate found Pw.3 and Pw.4 to have been accomplices. He however relied on their evidence and that of Pw.2 to convict the appellant.

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• 2--- I agree with he learned state attoriey that the trial court having found that ?w. and Pv 4 were eccomplices 3, the court should have looked for materiil'and independent corroboration of their evidêe before acting on it. The court's failure to do so was ."Jearly an,error. Howeve the possession of Pw.ls trouser the appellant would have corroborated Pw.3 and Pvv.!s evidence to some extent. But was the trouser sufficientlr identified to belong to Pw.l? I do not •think so. Although Pw.l mentioned some marks which he said enabled him he identify the trouser to be his he did not point out t6se marks to the court. Since the appellant also claimed ;.Jwnership of the same trouser it cannot he said under t1e circumstances : that Pw..l's identification of thtrouser was beyñd doubt. Where an accused person claims uwnership of a. thing alleged to"ave been stolen by hith clear and full descri- ption of identification marks on the, thing is essentiaU I do not think that this was done in this case. Thus' the evidence 04 Pw.3 and.Pw.4 stood Un corroborated. Under these ircumstances I find it most unsafe to uphold the appellant's convictions. This apJ Isallowed for that ±'eason. The convidtionare accoHiglr quashed and the ëntenceimposed thereon are set''id He should be ±èleased from custody forthwith Uifiess he is otherwise i.wfuily heldi LB0 MAGA1"GA JUDGE Miss. Kessy for the Republic •1 Apiltr absent. 1BWClara. (1