19720703 TZHC Dodoma

U., IN -'111 1 -TED HIG-H CCU°RT OF T.NZa1iIA AT DODOh.. 1 APnLiai•1 JU.IS i) IC I 0i\T High Court Criminal Appeal llo.35 of 1972 Original Criminal Case No.146 of 1971 Of the District Court of Manyoni istrict At Before; L.G.Rugimbana ........ District Magistrate. Ashen s/o Salehe Kadernba ..... Appellant (Original Accused) versus The Republic ...................... espoadent (Original Prosecutor) çhae;- Breaking into building and committing felony c/s 296 (1) of the penal Code. J U. D G B N B N T,. 4: The accused was charged with and convicted of hreaing into a building and committing a felony therein c/s 296(1) of the Penal Code and sentenced to 2 years imprisonment and 24 strokes corporal punishment. Dissatisfied with the finding of the trial Magistrate he has ap.ealed to this court. Arguing against the conviction the learned defence counsel submitted that the piece of cloth which was the subject matter of theft was not adequately identified as that of the complainant. In supDort of his argument the court was referred to the decisions in GIT3YVS971)H.CJD.casei.10, QQJL JjR (j6Jj,fl CDC.sei'To. A4 It was also argued that the doctrine of recent possession under which the learned resident magistrate relied in convicting the appellant did not apily on the facts oi this case. Finally it was. argued that the trial magistrate based the conviction on the weaknes of the accused's

deence instead Of basing his finding on the strength of the prosectition evidence and the court was referred to the decision in ILBIB VS R (1971) The learned state attorney on the other hand argued that, there was sufficient identification of the items by the complainant as the same property stolen after the building had been broken into. The following facts are not seriously in dispute in this case: On 1 9/8/70 one, Bertha d/o l luko, the complainant, closed the door and windowto her class-room after office hours and went home. hen she came on duty next morning she, to her great astoni- shment, found that a piece of Kitenge cloth, three.. and half yards of cloth which was to he nade into a gown and other articles, missing from her cup-board which was inside the classroom. She reported to the police and to her neighbours what had happened. On 12/10/70 she received information that a tailor(P.4,7) was stitching a kitenge similar to the one stolen from her class- room. She visited the tailorT sishop where she identified the piece of Kitonge which had now been made into a shift-gom as similar to the Kitenge stolen from her class-room. On interrogating the tailor as to how he came to be in ossesson of the Kitenge, the tailor mentioned one Salima d/o Saidi (P'T.9) as the person who - S SOS•S •..i •'. • • ,• - - 2 - t the Kitenge to him to be made into a shift . alima was and

apprehended and on interroation mentioned the accused pereon who gave her the Kitenge. The accused was subsequently ad and charged with the present offence. Dealing with the question of identification I tend to agree with theepublic that the piece of Kitenge as well as the three and halfjiece of cloth were amply identified as the same items stolen from the cojnlainanis class-room 0 There was the testimony of Bertha (F.W.1 ) who identified the piece of Kit onge whe she saw it at the tailor' s shop as the one stolen from her clar3s-room Her testimony is supported ba the evidence of KarTha (P:T,2) who was the owner of the Litenge and who had sent it to F. .1,1 for etitching into a shift. This witness had earlier identified the cloth when she saw it at the tailor's shop. as to how the Kitenge cloth reached tile t:ilor(? .J .7); we have the testimony of the tailor who related to the court that the cloth was sent to him for stitching by 3alima(P.'7.9), alima testiiied to the cour'G that the Kitenge was given to her by the accused, who sue said was her buy-friend. T0 support her eory Gha - c the accused was her paramour she producea accusou's photograph which she said the accused had given it to her as a sign of rememb- rance. J-here ws _a / view suificie1a evluence o uàliSh th u I ccused was well knoun to Salime. (P.u,7). On the evidence the accused's enial that he did not know

balima is diearly inconsistent with nnocence. As to the {- yards of cloth also stolen from the class- room of Fni.1 , there is the ess1mony 01 Bakari(F, .6), the sub-post- master who told the court that on 10/10/70 a parcel Ho,206 was posted under registered cover NoO9O9 from his post-office to one, Lushi d/o Kapanyula of South Ul anira , According to his testimony the sender of the parcel vu: one A.S. KAUDiiKiI3A, A.S. Kandemba w...s proved as the name of the accused- His first names being -sheli Salehe and his surname being Hand emba There was evidence (Ft,8) that Lush.i d/o Kapanyula was accused's wife. Her house at Mainyi, in Ulanga District, was searched by Haruns, a police, constable (F.,8) and a pair of new Khanga were found in the house hile at the house Haruna also discovered that accuSoJts wife had sent a piece of cloth to a tailor for stitching to a gown. He visited the tailor and found a piece of cloth measuring 3 -- yards. He took hold of the cloth and sent it o Itigi Police station. In her testimony Asteria(F,W.3) identified the piece of cloth (exhibit B) as the sane cloth she had sent to F.J.1 for stitching into a go'm and which cloth was stolen on the aria1 day. Further more !mina(F. .4) idunt iAL the piece of olobl sHè hdd sold to :2 Asteria (F , y.3), The fact that the accused posted a parcel to his wife sometime in October 1970 and the fact that during the

sums month a piece of 3 -i- YarcLe cloth was found in the possession of accused's wife in Jalinari and the furthar fact that this cloth has been amply identified as the same cloth stolen from 2,4,1 t s class-room goes a very long way to implicated the accused with the offence charged, If I. do not refer to the many cass quotted by the learned defence Counsel in detail s it is not throurh lack of respectfor the learned counsel who argued this appeal with clarity and restraint, I am satisfied however thot there was ample evidence supporting the learned district Magistratets verdict, I agree there were a few misdirect ions here and there but such misdirect ions in no way material and are curable under section 346 of the Criinal Procedure Code, On the facts I am far from being satisfied that the trial Magistrate misdirected himself on the doctrine of recent possession. In the event I have iao elternative but to dismiss the appeal in' its entirety, . DODOMA / 3/7/72. Hangat for the Appellant/Chamakare for the Republic. JUDEe