19700804 TZCA Dar es Salaam

At .uar es 5a.Laam. Criminal Appeal Mo. 447 of 1970 (Original criminal case No. 36 of 1970 of the DiGtrict Court of Ulanga district at U:langa) • Before:- E .. K. h1U1.l1AKI, Esq., - District Magiertra te SHAI.BU ALLI lviKOMERO •••••••••• AJ?El,L.i'{{.)T versus TiiJ.,~ REPUBLI<J ............... ~ •• REi3PONDI:!NT. JUDGM.EUT HAMLYN t tT. The appellant was convicted. in the District Court of ifahenge of' offences of burglary and stealing., contrary to sections 294(1) and 265 of the Penal Code and was sentenced to a total of three years imprisonment and to receive twenty- four strokeo of co.rporal punishment v.nder the provisions of the M1ni.mum Sentences Act. He now appeals to this Court agains·t such convictions and sentence. The appeal is an impudent one, :for the appellant, according to the evidence of several witnesses, was caught red-hat1d.ed in the sleeping-room of tlrn com~)lainant, into which he had broken during the hours of night; th,J several wi tn~sses sa.w him, when the alarm. was gi 1ren, with th,3 clitb s of' .the complainant over his shoulder. The complainant wns woken up .from ne.r sleep during -~he night hours by the flashing of a torch in her face and saw an intrud&r in her room; she sprang up and, as the man was abou.t to leave the houee, seized him by the back of his trousers, calling for help. Several neighbours (who gave evidence in the Court) ca.me to her aid an1 assisted in detaining the intruder, whom they identified as the accused in these proceedings. He was carrying two pieces of material which formed part of the dress of the woman complainant. He was ·taken to the ;Police Station and on the way flung away to two pieces of cloth. When th:c1y arriv~d at the Police Station, the appellant suddenly escaped but was afterwards re-cavtured. In giving evidence in the trial Court, the accused denied that ho had entered the house or that he had stolen anyt.ming therefrom. Hir1 version of' the matter i13 thr:tt he was talking to the complainant, standing on th, verandah of the house , when the neighbours arrived and arrested hi:rn. He does no·t explain why they should have done this, nor did he put this to the wl tnesf\es who ga'1c evidence on behalf of the pro::rncution. The trial magir:.:trate rejected the version of the matter gtven by th.i accused and reading the record I am sati fied that he was perfectly justified in so doj_ng. The story given by the prosecuttion witnesses iB clear and cross-ex mina tion of t11em completely failod to . hake ti.1ei:r. testimony. The magistrate wrote a careful judgment and examined all the evidence before him and reached a conclusion which I do not think h.e could properly luwe avoided on the evidence before him. After recora.ing a conviction, the presecutor inform.ea. the Cou,rt of a number of prevmous convictions a;:,'J1innt the prisoner; two of these he ad.mi tted and the Court 't.hen:fore adjourned. for the remainder-to he proved at a later date. At the adjourned date, a police officer yut in a certj_i'ica..te 0£ previou:i, conviction:r:, vrtd.ch the trial ma 6 istrate ~ccepted ar; being proof of the prev:Lous hietory of thiL mnn. This is insufficientr for evidence should have been taken by the pDrson who took his finger-prints, to shew that the prisoner to the same maria~ he to whom the record refers. The procedure for proving pr~vioua convictions is set out in the Criminul rrocedure Code and such procedure 13;hould b,,; followed. The trial Gou ,--t sentenced the appellant to three years imprisonment an the burglary Count and to a period of twelve :months imprisonment running concurrently on t.~::; stealing r.,,unt; in addition he wne ordered to receiv·e twenty-four strokes of corporal punisri:ment in t ·rm~:: of the Min.imt.1m Sentences Act. Such sentences 8. re by no Jneans excessive anc1 are hereby confirm :-:d. Had the wh_-le record of the prevmour~ convictions been properly proved against this man, I would have considered enhancing se~tence to a longer term of iruprisunmen t, but in viev-r of the only record being those a a.mi tted by the accused, I shall not take such action. This Court consiJers that the evidence before the lower Court leaves no .rea:::;onable doubt as to th,-1 guilt of the accused and that the appeal is without substance. After reading the record the Court is satisfied tha~ the nppeal has been lodged wi tn.out any sufficient ground of complaint and I consequently order tha·t it be forthwith sumrnaril;::, rejected. Dar es Dalaam. 4th August, 1970. r