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I/k /I13(L SW1X)1, L IN THE I-IIGH COURT OF TLNLNIA AT .L). .uOIU AP2EL:ATL JURISDICTION CRIMINAL APAL NO.182 OF 1977 ORIGINAl1 CRIhILLL C3E NO . 280 OF 1.976 The Republic versus I311YL s/o FFJ1IK Charge : Burglary and Stealing c/es 294 (1) and 265 of the Penal Code. 'JUDGNT IL P.M. JONLTHAN J The appllant was convicted of burglary and stealing ncL given a substantive. sentence of thre (3) years' imprisonment. Agains the conviction he has appealed. Lccordingto PU.i the complainant he locked up his house and lef but when he cane 1ck at about 5.30p.m. he found it hihg be 'n br ken into and a ntnber of things missing, including his bicycle, a jaoket and various items of clothing.. One month lat...r ating on a tip-off accompanied by PJ.3 and P. 111.4 they confronted the appe- llant whereupon he appears to have confessed to the offence. He offered to take them to the hide-out provided however P1, .4, an askari who had in .thaneantime jciiic-d the search 11 party, did not .go with theta. The offer seems to have boon accepted and on the next day the appellant took thou to a cave a fiw pac.;s behind his heusu, from where he brought forth a jacket and two other items of clothing • which the complainant identified to be anolig the stolen things. A little later they had come acre-os PW.2 having a bicycle fitted with a wh. ol which transpired to be that of the stolen bicycle. The

explanation of PW.2 then and later in his ovidencu was tbt ho had hen sold thot wheel by the appellant for shs.40/- only a day after the relevant day. The appel'ant in his evidence claimed that,thore had becn some disagreement 1)etween him and the complainant following an allegation by the latter, but denied by the appellant, that he had made the latter's sister pregnant and that, the complainant had vowed to avenge. That was an after-thought for, at no stgo earlier on had the appellant intimated such inciJent. He then went on to say that after he was arrested and tied up the damninL items were planted on hia.. He. called two witnesses to bear this out. The gAt of thir evidence w.s however that they had net ben pres.nt uhen theee tnins•• were found and they had : only later cone Cu the scene to find the apollant havinG boon arrested and IIanCICUnh. od and thoee thin,s rosent. As regards the bicycle whel he denied ever selli. it to P11.2. I am satisfied the trial court on the ovidenc before. it r,s entitled to rej:ct the defence and to find tho apollant wae feund in e..n• ossion of the cThtho anc. the bicycle part. Those huvin.b:en properly idontifed to be the crnpThin2nts prop.ry and the tipe intrvel between the theft and the apellant!s rossession bcind that shnrt 9.'tho only c 'climien to Craw was that the appellant was in fact the perpetrator of those offences. As it wrtulc' hwover I appear'they were coaWted bofrro erk, the coyiviction of burglary cannot otand There is acccrdinly substituted n convicicn of ioio.... breakn. In the rcsult, save ft r such julstitution, the op)eal is disuis'd in its entirety. 4,41 P.M. JO NA THAN .1-TI. rt i .. t) U±Ik.LLJ