19711023 TZHC Arusha3

9 S UThE JilO { COUliT OP T.A,14Z ARIA AT ARUSHA APPALLATE J1D1CION (RIMfl4AL k?PAL Na. 212 OF 171 /t Cr. Apr. No. 214 of 1971 CXEAL C5J 140, 295 OP 1970 OF i?BI C3u LU10 DI: TJCT I! efore C.i. Jahrna, Eaq. 9 Ditx*ict Mit'ate 0I U•S N0i4 •••••• verv;

PIBUBLIC CBARG: H ouse -breaking and Stealing oontrary , to eeotion 294 (1 ed 265 of the Pen1 Cone,

JUX CM PATE, Agi J. floth app e llrznt8 were conv1cted before - - the district cotrt, Lshoto for the offence of oe-breeking and Stealthg and were sentenced to 2 years iprioment and 24 strokeo, ltai1eod that on 15th Oetober, 1970 both appel1ta jointly and together bro1e an entered e dwelUng hov.ae of Ivary 5/0 Chetahamba and stole from, therein a tr.sietor radio, 'bed-she e ts and aboeaprsona1 be1ozithgs to 1be said Ivry. It appears that from the recorde that the offence we citted on 150 Ootobr, 170. Zeport we made oo, the fo110wig day, that is 16th October, and on 18th October, that i.e three daa after the incident both acused were ford in p0 iOfl of the articlea stolen and were arreted and ohargec for the. offence. The property •r go ,, da stolen by aocused were properly i ~ er; tifjed to the satiGfo.ction of the trial magistrate, beforo the tr.a1 ceurt. Both aooeed b1ae each other eayinr the other appellant geve this articlee and each called witnosece to support thee. The learned trial na, istrite convicted them on recent poesoesion after eardin and rcjectinç the e xplanationri of botb appellants and convicted tbem of, iouebreak ng and Stee1in. There te nothing on record or the evidence or jum.nt or reesoning and findini of the trial a gitz'ate the or in Memorandum of Appeals which will OPAO me reveroeLdecision trial maiotrate, except one point which was pointed out by the I

med Stwe A,ttorno. Be said that from the evidence e it appears on the record House-breaking ir not proved and eetb1ished as the deere and windows were not tred with and there i no evidence that the houee was broken into srid he refe'rod to IPW 3. who was called. The 3tate Attorfley weflt on to say if the evidence of thie wtncsa is accepted the right offenee for appl1anta to be convicted would be to enter a Dcel1th house contrary to sectiolL25 -of the Penal Co4. I agree with the learned Sttite Jttomney andYhereby , eübtitute the conviction for , ntering a dwelling }i0i.ee contrary to section 25 of the Penal Code for the first count. There is no merit on the ppeiao and .1 dteitee both ppeale Pelivered in Court at Arueba on the dar of 25th of Auguotv 1971. PAL) A. 0 U D 0 r T. OAR . / 0 1 tp t& th t lii&ex W) P vir, L1 ø tb

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