Kivike Chang'a vs Republic (PC High Court Criminal Appeal No. 3/1989) [1991] TZHC 2258 (18 July 1991)
Judgment
IN ME HIGH C-OUIDT OF WZANTA AT M13YA APPELLIE 3t]RISDICTIT (Mbeya Registry) (pc) ldGH COURT CRXMflAJ AP?1AL NO. 3/1989 (From Criminal Appeal No. 34 of 1987 of the 4io't Court of Iringa and Original Criminal Case. No 244 of 1986 of Mazorjibe Primary Court) PIM 16 MWAMAJA.— P. D. N. KIVIKE CRtINQA .4......e......,.. APPELtTP Vorsua BZPUB1ZQ RSP(ZT JT MOHOME. J. Kivike Chang'a was cr with Robbery contrary to sections 285 and 286 of the Penal Code at the azoro Primary Court in Iringa District0 He was found Cuiltys conviated ai sitenced to seven years imprisorraento He appOa11c to the District Covit against both conviction and the appeal was d.iemisscd., Tils here is his second. appeal. His conviction was baoi on tho ov.denoe that on 24/9/86 at 103O p.m o the house of one P4i1 Dhegga was broken into by thieves. PW.II, the complainant's wjfe vliq- was the house witbott her husband was beaten up and robbed of virtually e. ç'- hing in the house. - Shc iicd the appellant among the thiev: r rorn the light from a. lp wh1c was on inside her house. After his ar ;st the appellant was fotsid wearing a. shirt which was identified as one of the stolen property. Mr. Naali, the learned. State Attorney for the Bospomloirb did not support the conviction s He was Justified in so doing. The identification of the appellant was not watertight. The light from the lexap was faint and ho identification was not accompanied by a description of the appellant. Merely saying "1 identified the appellant" in testifying is not sufficient identification if not accompanied by a detailed account on how the isect was identified., Similarly the shrt allegod to have boon identified. There is no mark distinct from other shirts to prove it was among the sclon shjrts 0 PW.I the alleged owner of the shirt never even mention it in his c.eñce. Thoroforo there was .enough• doubt for both lower courts to ar- •. . ./2
U —2- Theeore I a.UQW thie appo& 4 q uash tba. oonviotion and. set asid.a the sentence passed aga.inst the apo11ant. He is to be set at iibsrti immediately lass he)or some othex ),c•ftta cause.: L. B. MCHOME
3UD 18/7/91 Z,BW3TM