Hussein s/o Omari vs Republic (HC Criminal Appeal No. 126 of 1931) [1982] TZHC 607 (2 December 1982)

CHARGE: — IN T I HIGH CO'T O T AT Z!TI fl T APPELLATE JTJ!TC3DITI0N (Taboro Registry) HIGH COIJiT IMINAL PTAL NO. 126 OF 1931 (c/f Misc. Cr. Case 33/91) ORIGINAL CRT1iINAL CP37 1E NO. 124 OF 1931 . OF T}P COTIFT OF Tei30Ri TIST1ICT .T TA3ORA ]31ore sqc, D r±e }daTistrate .....,.. . riginal.fccused) VrRSTJS TiE REPUBLIC. . . . O.RESPONDENT (Qriina1 prosecutor) Store Breaking and stealing c/s 296(1),of.the Penal Cbde Cap. 16 Vol. 1 of the Laws. . .... . . . J U D G L E , TT T RUBAMA, J. jl HIJSSEff s/o OF1IARI was cI'ur ed. with and corw1c -1 ,,6 1 of store breaking and stea1in c/s 296(1) of the Penal Co 1 e nd sentened. to five years 1rnpr1sOn.en. I allowed the apIca] on t h e, hearing dite, quashing the conViction and setting aside the sentence. I ciid.* rOt ode.' tat ;.he appellant be set free at once unless he was bein:lawfuUye1d on ano- ther matter sthe appellant was already on heil J give my reason.s for the decision. . ,...,. . . . There was evidence t'at tic etore of \ du d/o hrudi was broken into on the niht of 17th TTovenher, 1930 end .vaiousitemsr stolen from. therein. Amongst the itora eto1.n were tenty, eiBht 11n0 of cooking oil. On infromation received, a neighbo.urs hbuse. — one GRiOE d/oPA1O — was searched.. .. Nothing was found6 . However on. further search.in the neighbourhood, same thirty tins of id,eticalrp.e of cooking oil was found hidden in the bushy area0 G:ace Paulo accepted that the oil was hers and that she had hrou,ht it froii the al?,--cllant The appellant accepted having sold the ao il oil to arooc d/o Paulo. The appel1t further stated that h e. had. 1so sold ton trs of the samol type of oil to Mary Meshaki (D.w.2). He further stcitedthat ho hadTro.ught e se from hinyanga.. He produced some docnents to back up his story. The trial magistra-tets hanhling of tho evidence before him was admirable. He evaluated the evidence einu:boThr.. I 1oowsver0 allowed, the •,a...,,. 0

no appeal mainly. boouse the .trial:.eiagistrato did not properly ad.dress himself on the issue of .identiiication of the stolen tins of oil from the complainant. There wasno suffi•éiont evir),DnGa that the oil found in possession of Grace Paulo and which the appellant readily agreed to have sold to her was t.he same oil as that stolen from the complainant the night bèfore. To atart withihau d/o]hamadi had only lost twn- ty eight tins of tT... s.'.' ' - foundwith thirty and there was evidence, which evidence was ,ndt contradicted, that the appe- ilant had also sold ten other tins of cooking oil to Dlary Mehaki (D.w- 2). But even assurnihg that Grace Paulo had been found with the same quantity of oil as that stolen from eadn d/o Ahanadi, i.e. twenty • ei&ht tins of oil, that by itself would not have been sufficient evide .nce of 'idntification It is bonon haowlodè that t 'bit'ts mass produced and its packing s. conimon and identicl.' There existecT no spe•cial mark that the oil found in icossession of Grace Paulo was that stolen from Abadu uadi-. There arecth thor reasons that led inc to 'allow :Itha ,aJ p,,1)eal_i I will deal with t 1 hein briefly essential]y for the benefit od. the trial inagist- rata. I have said above that'the analysis of the evidence was admirable. In anlyaia' ti evidorce ci - the 'apell'ant, the trial magistrate found that the appell.t had told the court lies as to how he had come in possoasior of the oil,' 1 do not intend to go over the evidence for it reallydoes. not m,ter' either way now. I only vit o state that when un rial maistrate o'und the appellant a her, he equated these Ibies with guilt The judgment is very clear in this aspect i.e. that the apaehh'ant was lying because he had stolen the oil from Jbadu d/e jhniacti0 This s a serious iiisdirction for lying is not synonymous vith u1lt0 One may hao scvcral other reasons for lying. To have approached the evaden.co. in this way, the trial magistrate was thereby, unwittingly shifting the burdon of proof to the appellant.. He was,, too convicting the aprellant because the 'appellant's story or defence wasvak The evidence fobnd sfficient by the trial 'ia'tgistrate was circu- mstantiah evidence.. The ripel.1a.nt was not seen 'at ore breaking. The trial magistrate was not exphict in his juLgmont but it can by clear imhicatiha be said that he had 1voked the doctine of.;ecent'possession in finding the arnohlant.Ul'te.ThC'Ojl was found in possession t Grace' Paul o. on the day fohlowin the thof't,and also fund hidden; outside • • I',..

the house. The circumstances were indeed suspicious though the expl- anation given by Grace Pa.uo as to why she .h.nd not been storing the oil inside her house was reasonable.) 3he had after all boi4ht the oil openly and after she had satisfied herself that the seller, i.e. the appellant had cone into the product lawfull. Whore she chooses as her store is thus her buines. The Ohoice f the store by Grace Paulo weiphed heavily aceinat -the aeecl ah hana the trial court was evaluating the evidence and yet it was clear 9 as I have above tried to show, that Grace Paulo and the appellant relationship was that of buyer and seller, nothin more0 What next Grace Paulo did with the oil should, not have weighed against the annellant0 The trial magistrat- e should thus not have been unduly influenced by thit circumstance ev- en assuming the evidence of identification had been sufficient. nother factor had weighed against the apei.Iant which the trial magistrate should not have given that much weiht At the scene of crime was found a boot which was later found to fit the appellant. That was found to mean that the eanellunt must have been at the seene at night to steal0 The inference was unfort1-nate0 For one thing there were other items found at the scene - a belt whoso type is commonly worn by army men - the appellant was not shown to be in any more asso- ciated with the army than the rest of us i.that he was one of those supposed to he protected by it0 But that the shoe fitted the appell- ant is neither here nor the0 It could have boon purely an accident. Shoes are mass pro iun' people wear identical sizes; that is one reason why itis nossible to produce one size in great numbers. For the reasons outlined above, I allowed the appeal. I would like in conclusion to state that for insufficiency of evidence of identification of the stolen items, the Republic did not sup rt the Qonviction. Y 1'hL R e, J. 1' 2/12/82 Cr RhMA, J. Mr. Ghaila, 33tate Attorney for uhe Ropuolic Appellant absent. Judgment delivered 0 YAHYA RUMA, J. 2/12/82 t-t