Mbeswa s/o Chiloya v. R., Crim. App. 96-D-69; 29/4/70; Georges, C. J.

Mbeswa s/o Chiloya v. R., Crim. App. 96-D-69; 29/4/70; Georges, C. J.

The appellant was charged with storebreaking and stealing contrary to sections 296 (a) and 265 of the Penal Code. The complainant had a store in his shamba in which he kept his jembe and saucepans for cooking. It was closed by two bolts. Part of the door was made with tin from a “debe”. He had closed his store properly on 30^th April, 1969. When he returned next day he had found that the bolts had been removed and the tin part of the door cut. Two saucepans, a jembe and a cup were missing. On 1^st May, 1969 Det. Corporal Daudi Mikambo searched the appellant’s premises. Under his bed was found a bag containing what was described as a “tin smith snip” and two hangers that appeared to have been taken from a door. The corporal asked the appellant about these articles but he said nothing. According to the Corporal he found out the following day that the hangers had been taken from the door of one Bilali. Bilali himself testified that he identified the bolts but exactly how the record does not state. After the identification of the bolds the appellant’s house was searched in his absence. The Corporal testified as follows:- “I went to the accused’s house and there the accused wife admitted that accused brought a saucepan but it was at shamba. She went and brought it.”

            Held: (1) “The evidence as to what the wife had said was clearly inadmissible. It was hearsay since the wife had not been called to give evidence. In any event she was not a compellable witness and may well have refused to testify if called so that her evidence would not have been available in any event.” (2) “Bilali said that he identified the saucepan. Again there is no note on the record as to how he had made the identification. It has been said over and over again that trial magistrates should not be content to accept bare statements from witnesses that they identify as their property articles which are of ordinary manufacture commonly used by a large number of people – such as the articles in this case – bolts for doors and cooking pots. The record must give some indication of the method of identification so that the appellate tribunal can form some opinion as to the likelihood of its accuracy.” (3) “The identification of the property alleged to have been stolen was satisfactory. There may well have been cause for suspicion but not enough evidence to establish guilt beyond a reasonable doubt.” (4) Appeal allowed.