19711022 TZCA Dar es Salaam

-' at Jar es oaiad Criminal Appeal No. 125 of 1971 Original CrIminal Case No. 561 of 1970 of the District COtht of Morogoro District at Morogoro P. K. 04 Shayo, Resident Magistrate Jumanne S/c Rainadhani, ,'.Ii.'......., . *.....'. . .. . . . Appellant Versus: The Republic..................... . . .•. 0,0 . . . . . . . . . . . Respondent JUDGME NT ONYIU J, The appeal against convIction has no substance. The appellant was convicted, on the 1st Count, of Entering a dwelling house with intent to commit a felony therein c/s 295 of the Penal Code, and in the second Count, of stealing c/s 265 of the Penal Code. The facts of the case were that the appellant was seen by P?1 coming out of his (l!s) house with a bmdle of clothes at about 8.45 p.m. In the night of 8th November 1970. He was challenged and he took cover under the flowers in the garden. The bundle of clothes was recvered near wh€re he was hiding. The clothes were identified as the property of PtV1. The appellant was seen by other witnesses and was arrested in the complaints's premises. His defence was that he went to urinate there and was wrongly arrested. The learned magistrate rejected this defence and accepted the case for the prosecution and convicted him of the offences with which he was charged. There was abundant evidence to support and justify the conviction. The sentence passed however cannot stand. The prosecution alleged that the appellant had 8 previous convictions and enumerated them. The appellant denied any previous conviction. It was therefore the duty of the prosecution to prove the previous convictions as laid down under section 143(1) of the Criminal Code and this they failed to do. The learned magIstrate apparently thought that the mere enumeration of prevIous convictIons amounted to proof thereof. It Is clear from the record that the learned magistrate was influenced by the alleged crimInal record of the appellant In passing sentence. Since no previous convIctIon has been proved as required by law the appellant must be treated as a first offender. He gave his age as 17 years. The value of the clothes stolen was 40/-. The appellant was a lame person. Taking all this into considera.ion .1 will reduce the sentence to 9 months imprisonment. ORDER: Appeal against conviction is hereby dismissed. 3entence is hereby reduced to 9(nine) months Imprisonment on each count to run conôurrently. Delivered in open Court thi 28th day of April, 19710 G. C. L. Oiyiuke Judge. ,1 Since the learned trial rnaistrte had already givei the ji.Ugznent in this ae I think that in the intereste of Juttce the retrial should be hold bt another Tnaistrate of oonpetdxit juriedietion. ORDER: Appeal allowed, eoiviction and sentence ar hereh3r et aside. It is hereby ordered that the case be retried by another magistrato of competrant jurisdiction. Vc2J-ee-r, /7/• G. C. M. Oyiuk Judo, V