Kazimoto, J.: When the appeal came up for hearing and having heard learned state C attorney who declined to support the conviction and having considered the grounds of appeal by the appellant I quashed the appellant's conviction, set aside the sentence imposed and ordered his immediate release from prison. I reserved my reasons which I now give. D
The appellant was convicted of house breaking and theft c/ss 294(1) and 265 of the Penal Code and sentenced to five years jail for house breaking and two years imprisonment for stealing. He appealed.
On 26.2.87 the house of the complainant (PW1) was broken into and two shirts, a pair E of shoes, a belt, a pair of trousers, children's clothing and ten pairs of khanga were stolen. The thief or thieves were unknown.
On 23.3.87 the appellant was seen by PW1 wearing a shirt, a belt and a pair of shoes F which complainant claimed to be his. This led to the arrest of the complainant and the subsequent charges and convictions at the trial.
In his evidence PW1 neither described by make or any other mark, the properties which he alleged to be his. According to his evidence he recognised the shirt by its yellowish colour and stripes and the belt and shoes by colour. Even if colour could be G said to be a special mark the type of colour in respect of the belt and shoes should be stated in evidence. And it has been held in numerous authorities that identification of stolen property by colour alone is the weakest sort of evidence and an accused person H ought not to be convicted on such evidence.
A judgment which does not conform with the provisions of section 3l2(1) of the Criminal Procedure Act 1985 is not a judgment in law and will certainly run the risk of being quashed. It has been said now and again that a judgment to be a judgment must I "contain the point or points for determination, the decision thereon and the
reasons for the decision." Having summarised the evidence for both the prosecution and A the defence the learned Principal District Magistrate had this to say:
Indeed on the evidence before me I am satisfied that the accused was found wearing some of B the complainant's property, about 27 days later (shoes, a belt and shirt).
This is not a type of property which could easily pass from one hand to another in such a short period. The accused must have been the breaker and the thief.
The appellant was not charged with being "found wearing or in possession". At issue is C the identity of the stolen property. The learned magistrate did not direct his mind to that issue. He did not say on what he was "satisfied" that the appellant was the breaker D and the thief. Further it was premature to invoke the doctrine of recent possession. That doctrine depends on the stolen property being identified. As it was not identified by the complainant it cannot be said it is the same property which had been stolen from him.
And to say that the type of property cannot pass hands within a month in todays E business boom of second hand clothes popularly known as "mitumba" can hardly be convincing. Clothing can easily pass hands within a few days. They are not the type of things which could fail to get a willing and able purchaser.
It was for these reasons that I allowed the appeal and made the subsequent orders. F
Appeal allowed.
G
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