19700504 TZHC Dar es salaam

IN THE HIGH COURT OF T/NZANIA At Dar es °alaa.m Criminal Appeal No. 196 of 1970 (Criginal Criminal Case No. 776 of 1969 of the District Court of Korogwe District at Korowe). Before: P.K, Lunyelele, Esq., — District lIlagiotrate 11hI hLHd 00 . . . . , . . . . . versus rini r'tj j. jiiirT i- •aa•a • I I S • a •L)i fl J.JjIJ. Charge:- 1st Counts Burglary c/s 294 (1) of the Penal Code Cap. 16 Vol. 1 of the laws. 2nd Gount Stealing c/s 265 of the Jenal Code Cap. 16 Vol.1 of the Lws. JUDGY. NT JLYl, J. - The appellant was chrged with and convicted ; offences of burglary and stealin, contrary to sections 294 ana. 265 of tna lanai Codes e was sonteced to a total term of imprisonment for two years and to receive :ty-four strokas c.: corporal punishment; from such conviotion.a nd sentence he now appaals to this Court. The story told b the prosecution witnesses is a very simple ona; The complainant, a woman named isia d/o Saidi, want to bed on the eve o' the burglary having properly secured her premises. Durin, the night she awoke and found that her hoUSe had been broken into and that; arious items of clotiing ;.nd a radio had been removed by the intraaers. She raised the alarm and it was reported tiiat four man had been seen durinL, the night moving away irom har house, and carryin. some loads; it was reported that they took the road to Moshi. The Police were informed and followed the direction that the asn were said to have taken; they came upon the four men carrying the stolen articles. Trie four were arrested and taken to Mombo and thence to Korogwe :olice Station, but there three ol them escaped and have so far not been. caj tu.ed. The appellant alona stood trial for th of±ences charged. The appellant claims that he was r.roceeding upon his lawful occasion when he met or was evertaken by the other three men, wan asked him to assist in carrying theia loads. He says that he bought a p.ir of trousers from the men and that all four of thorn were subsequently arrested by the lolice. Aster the three others escaped, he (the only innocent one of the party, he 1aims) ws 1ft to he punished fro something which he had not lone and of which he was innocent. The trial nagistrate retused to acaet this version of the affaii , and I am satisi.'ioci tfint he had proper grounds to do so. There is iblear evidence that, after the burglary, four men ad not three were seen leaving the vicinity of the complainant's house. Certainly there was no identification of the appilant as the fourth man, but it seems clear that four persons took part in the burglary. The accused was found wearing a pale of trousers stolen fr the complainant's house the night before. Thcfe can be no doab; of the ownership of this garment, for it had certain peculiar supn It which only the owner would (and did) point out. The appellant himself claimed that the trousers did not belong to the compL..inent but were his. This claim dtain1y untrue and the trial magistrate was satisfied as to this fact. It also seems a little strange that the appellant, if he really were found in the circumstances which he claims, did not give evidence on oath, :. or that would really enable him to establish the truth of his story. Instead, he desired to make an anoworn statement to the Court, which is hardly what one would have e.pectea. • ill I ./2. 41 iOC[fl2 oL6t '&It tl7 o) •uflI1'cj sE / •poaç'et zwugw' Oq qt xop.xo Aiøsiioo iP .uPTdwoo jo pur6.i2 uototjns Vu i,notpm tO~?POT r.maq srq tdcIT t{1 OJ O3UJ wnwlUTK 9t. j0 suotsçAOJci Zt. tI 3U ZQ;0t3 OJ QU OU.qn toi{q.tM ST Iec P oo'Dq. O qnop aquoot?aI ou tno) o JQJaq pouepuo ir puoo q anoo s1 'einoo 'e tons Mofl0J o paqOaTO 't PTrLot(s O TT qt' o i 3v u iO!S 'POs l: OaE)XD VTXQdOx(i et prn rnoo eqq. €lojoq zo.qtu ai. jo uo,xa itt - q lid p inog ai qot& uT uixoj qq eooqo o. uotqclo 97qj asanoo jo pvtj e