19700311 TZHC Dar es salaam

V /.;. • :'.. . . IN ThE HICE COURT OF TANZANIA A DAR CJU:MINAL APPJcAL NO. 22 OF 1970 OriinaI Criminal Case No. 277 of 1969 Of the Pistict Court of 1t wara District at Mtwara Eefore H. Sisya taq. 1 Resident 4agistrato AI'HUMANIa/o ALIY .... APPELLANT varzus THE REPUELIC REFODENT CIlGb: 1st eoi - t: House breaking contrary to section 294(1) of the Penal Code. 2nd countl Stealing :0/5 265 of the Penal Code. : 3rd count: Escape from lafui custody c/s 16 of the Penal Codo. 3UDCMN BIJ0N, J. The appellant was charged with housebreaking and stealing, and with escaping from lawful ou.etocLy. He was aoquttted on the charge of escaping ond convctod on the charges of housebreak.ng and stealing, and sentenced respectively to three years and one year's impriaonmnt and to the statutory twenty-four strokes loorporal punish- ment. He is now appea1ng. The appellant and the complainant occupLed adjacent rooms in the same house in a village called Chikongola in the 14twara District, their rooms 'being divided by a wail which does not z'achto the ceiling, there belflg a speCS between the top of the wail and the ceiling, as is so often the case in some £ndigenous houses. It was eotabliahed in evidOrO that some time between 8.30 a.m and 11.30 a.m. on t.e"24th Juiyt last year, the compia inant's room was entered and a radio was stolen there from. It was apparent that the room had been entered by someone climbing over the wail from the appellant 0 s room, as the wall at the top was somewhat broken and there was fresh dust lying about, which had obviously fallen from the wail. Halima d/o Abdalia, who described heroself as a • fostermotber of the appellant, who # she said, visited her at her house in Singina village in the Mikindani aL'ea almost every Sunday, testified to the effect that the appellant :05mG to her house at about .11.00 p.m. on the :24th July. He had with him a radio and informed her that he was in trouble, having lost ius job and being iøk noedod money in order to äonsult a doctor. The appellant spent the night at her house., and she gave him ds 201. The ippellant left the radio as a seourily, although she said in cross-examination by the appellant, that she told him that she did not require any security in view of thor reltionsbIp. On the fo1lowng day, that is the 25th July, when the police came to the village whore they eventually found the appellant with the assistance of a TANU Youth Leaguer, Ial1ma, after enuiring and being told why the appellant was being arrotcd, produced the radio from her house and said that It bad been left there by the appellant the provous night. The appellant in his defence elected to give evidence on oath. He denied all knowledge of the theft of the radio, though he admitted that he was aware of its presence in the complainanVe room. He also admitted that he had been in Ilalima's village, though denied having gone to her house, lor even knowing her, let aloflo there being any kind of relationship btweon them. lie asserted., however, that he had been to the house of another woman in the village, one Asha d/o Mend, whom .. • :F, - t he described as his fester-mother. fle informe4 Asha Manzi that he was unwell and required medicine. He wad told that one Sahidi could assist him, This Sahidi was oallcd, and after he had informed $ahidi of his cmpiaint, SahIdi went out and returned with a police officer, who arroetd him., Not surprisingly, the learned magistrate rejctod the appellant's defence and accepted the evidence of the prosecuton witnesses, which particularly that of flalima, Gotablishes on the application of the doctrine of recent possession, that the appellant stole the radio. The iGarned magistrate further very properly directed himself that the means whereby the appellant entered the complainant's room, by climbing over the wall which separated it from his own room, constituted a breaking as defined in section 293 of the Penal Code, However f as the evidence as to the appellant having escaped from lawful custody was fur from satisfactory in that the police officer from whoso custody he was alleged to have escaped., was not oven called as a witness, he acquitted him on that charge. Although the appellant's pctiton of appeal is rather prolix, it does not raise any substantive ground of complaint against, or fault, the convictions in any way. The convictions are eccording].y upheldo fith regard to sentence, although the appellant appeared in court as ar first offender s the magistrate apparently felt constrained to puss a deterrent sentence, beoause of the prevalence of the offencos. Hon- suer, the learned magistrate has overlooked the factor that the breaking was really more technical than real., and what is more important, that it was committed during the absence of the complainant. The most serious aspect of housebreaking and, still more so, that of burglary, is the fright and shock it occasions a householder or any occupant of a houae when it is broken into. Arid this factor was, as rioted, lacking in this case, There is also another redeeming featurej and that is the appellant's moderation., as all be stole was a single ite.m4 In all the cirumstanoes, I am very far from persuaded that the imposition of a nentence a year in excess of the prescribed minimni, particularly as it carries with it the statutory award of twenty-four strokes corporal punishment, could be justified. The sentence of iprison- met for three years on the first cOunt is accordingly set aside, and there is substituted therefor a sentence of irnprisonmcnt for two years, to run concurrently with the othor sentence as originally ordered. To the extent indicated, that the sentence of imprisonm.nt on the first count is r\duced to two years, this appeal is allowed, and in all ether respects it is dImieed. Delivered in Court at Par es Salaam this eleventh day of March, 1970. (PiIILIP BIRON) JUD