19710723 TZHC Arusha

f i •.- '- '--. _ 1 C, IN THE HIGH COIRT OF TANZ.ANIA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL iTO. 187 OF 1971 ORIG-INAL CRIMINAL CASE NO.7 OF 1971 OF THE DISTRICT COURT OF i;BULU DISTRICT AT IVLBULU BEFORE L. A. MGONJA Esq., DISTRICT MAGISfl?JTE ALl PARU ...............................4ppellant (Original Accused) versus THE REPUBLIC ........................Respondent (Original Prosecutor) ' C1iA21G-E: Storebreaking and stealing c/s 296 (i) of the Penal Code. J U D G i!1 E N T Kwikima, Ag. J. The District Court at Mbulu before which the appellant was arraigned received evidence that on the night of 18/1/71 at 8.00 p.m. one Darabe Saktay saw the appellant pulling a rack of millet from a pile inside a room. Darabe went to inform his employer P.W.1 Florentina Loahay;. On going to the'room Florentina observed the appellant pulling one sack of millet from a pile. The appellant then ran away. On checking one bag, half-full was however was found to be missi- ng. The following day Darabe saw the appellant carrying a half-filled sack and raised the alarm; Many people responded and chased the appellant who put the sack down and stood still. He was caught and taken to the Police Station where they arrested and charged him. 9 The trial magistrate found no reason to disbelieve the witnesses and the record justified him. The sack with which the appellant was caught was idonti. fied by-Florentina who gave mark by which she identified it. Darabe her employee corroborated her, in their identification of the sack. .iith this evidence which was so overwhelming, the trial court rightly concluded that the appellant stoic the sack from Florcntina's room where it was kept with others another one of which the appellant was actually seen pulling from a pile. The appeal against convic- tion has no merit whatsoever;. ccording to Darabe; the room from which the millet was stolen remained open all that day. Although orentina alleged that it was shut, there was nothi- ng to support her allegation. The prosecution brought no evidence of breaking. It is trite law that breaking must be proved before conviction for storobreaking or any breaking can hold. Since there ias no such proof the conviction as. charged could not be had. And it is here quashed. The sentence is set aside. Instead the appellant is found guilty of entering with intent under section 295 P.C. under the provisions of section 186 C.P.C. This is not a scheduled offence. The milled and bag were both recovered. In the absence of ag'avating circumsta- nces, the appellant is sentenced to nine months imprisonment. /L Al. vrikirna) Arus ha - 23' /7/71 AG, J U D G E