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IN THE HIGH COURT OF: .TJZ1IA - AT . . .. APPELLATE 3URISDICION HIGH COURT CRIMINAL APFEAL NO.67 OF.. 1976 (Origin rimay Court Mwadui Criminal Case No.171- of 1976 District court of Shinyanga Criminal Appeal No.78/76 before N. K. MhBONDO' .DSTRICT MAGISTRATE) . BERNARD'S/a RWEHUMBIZA APPELLANT (orgial Acusd) versus THE REPUBLIC • • ... . . •............. RESPONDENT (Original Prosecitor) CHARE:.lst count: 'urg1arc/s 24(1) of the Penai. Code. 2nd count Stealing c/s 265 f the Penal Code. JUDGEMEN .. . sIsYA;. J.., This is a second appeal. The appellant was charged with and convicted on two . countspf Burglary and Stealing 'before the Primary Couri, Mwadui, and he was sentenced to three years and one year thprisonment, respectively. His appeal to#he District Court,.. Shinyanga, was dismissed. Hèis now ,appealing to , this court.. Wiith the greatest respect to my learned 'brother, Katiti J.,. .whc admitted this appeal for hearing all I. can say at this early stage is that this was a fit case for summary rejection. The record of proceedings in'the trial court is pregnant wiht evidence to the effect that the appellant was found, in flagrante delicto, by the complainant inside his, i.e. the'.: complainants, house which had been broken into. The time was then about 11.2 p.m. Prior to that the appellant had been ser by no less than two persons two of whom were No. C.236 P.C. Ephraim (P.W.2) and No. B.9681 P.C. francis (P.W.4) loitering 'aroud the complainant's house with .a stick like object. Sth these policemen as well as the Complainant knew the appellant well - P.W.I and P.W.2 even knew him, I.e. appeliant by name as well - because they were all, including the appellant, .workig for the same organi,sation, nmey the Williamson Diamond and Mines,, Mwadui. The complainant became temporarily confused when he found the appellant inside the house iihich he had left locked. The appellant -told the, complainant that he had came to 'claim his money from the complainant's collea,e with whom, he, the complainant, was shorning the house. This, - 2 .' I This, however, turned out to be f1se b eause the sJ cclleague of the complainant was.then not present. This was testified by the complainant. The appellant tooic advantage of the confusion the complaitiant was thrown into and he, appellant, di'sappear.dto his own house without taking anything with him. Thereafter, the complainant entered his bed room which was screened away from th6 ­ s.itting room by a •curtain To his dismay he found his"reqordplayer which he had left on the table lying on his bed. It had been tied. up and ready tb be conve1g any place. On seeing this the compiLnant went and reported the matter to the police. he appellant was arrested on the same night at his hQuse. In his defehce the appellant told the trial court thai on the material day he left hs house at 6.00 p.m. and visLted three persons at their homes... None of the said three persons whom he named as Justas Kato, Benedicto Kati.and Kaijange gave evidence0 Finally at. 8.45 p.m. he proceeded to the, Community Centre where he drank bruhti'l. 1L.00 p.m. together with one Charles Barnaba and Juma Magauiga, none of whom also gave evidence. Thereafter he proceeded to the house ofone John Kati but found it locked. According to Mar±in FranCis (P.W.3) the said house of John Kati is in front of the complainant's house. Eventuall he appellant returned to his house and slept0 Later he was awakened by two policemen and the complainant who told him that he had stolen a record player. The appellant called one witness on his side at the tral. He is Joseph Bashaha, his brotSer-ln-.law. He gave evidence to the effect that he and the appellant live in the same house. On 28/5/76ithb appellant told him that he was going to the house of on Ka-Lo. He, appellant, returned home between 11.07 and 11.15 p.m0 At aboiit l.)O p.m. a vehicle came and took the appellant away. Thc tri2 court ron lthugh the tape recorder had not been taken outt-of the house there was, nevertheless, sufficient as-portati, as it hd been 69rrqletely removed from its normalplace and it was bound ready for transportation. The District Court agreed with this r'easprng. With respect, I also find myself in entire reement with this 'reasoning on this apect of the tase. 1 There was, sufficient taking or 'asportation' in this case to consitute th offence of theft. The appellant's second ground of appeal 'that there was nothing stolen from the complainant's house' therefore dbesnot h 6 ld.water. It Is misConceived and it conquent1y, therefore, fails. ...../3 On a • ' On te question of identification I do not hesitate to say that this was sufficiently established.. First, there Were P.W.2 and POW.4 who, saw the appellatit-16iter around the complaint!s house during that very night. These two witnesses saw the appellant when they were returning from duty. They easily recognised the appellant because of the electric light which was on and he, appellant, was not a stranger to etNer of them. Secondly the complainant himself met the appellant face to face inside the complainant's house: The complainant was then entering his house and appellant was coming out, obviously after his nefarious mission had been disturbed. . The appellant's story was, indeed, completely different fr.rn that of the crlaina'nt, P.W.2 and P.W,4. However, nothing was wstablished nor did any fact establish iteelf to show why thee witnesses, i.e. P.W.I., P,W.2 and P.W.4, should deliberately lie,and seek to implicate the appellant. At this juncture it may, inf act, not be impertnent to point out that when asked by the court at the trial the appellant denied the existence of any bad blood or ill will between himself and P.W.2 and P4W.4. As regards the breaking j.tself, again4. the evidence is overwhelming. The evidence of the complainant himself on this aspect of the case is supported by that of P.W.2 who testified to the effect that he was the first askari to visit the complainant's house oftthe material night. He saw the lOcking chain ordinarily used for locking bicycles which the complainant said he had used in locking the'door of his house which was broken. The same was tendered as Exh. •At at the trial. P.W.2 also testified to the effect that he entered the complainant's room and saw things scattered about and a record player' properly tied up (Exh.B) was lying on the bed. On the evidence on record and as the trial court found the breaking' was, no doubt, the contrirance of the appellant In short I am satisfied that the convictions in both counts are sound in law and they are consequently hereby upheld. Turning to sentence, the value of the record player was not established in evidence.. This ougbt to have been done. The charge sh.eet shoWs that the value of the said record player was shs.720/ but what is contained in the charge is not evidence., However, I am' prepared to take judicial notice, which I do, of the fact that a record player does not cost less than shs.lOOJ=. In the circumstaflces the sentenced in court one is the minimum prescribed by law'. •. ... /4 In