19731120 TZHC Dodoma

IN TilE HIGH COURT OF TANZANIA AT DODOM1 AP2ELLATE JURISDICTION HIGH COURT CRIJIINAL APPEAI NO. 201 OF 1972 ORIGINAL CRIMINAL CASE NO. 185 OF 1972 OF THE DISTRICT COURT OF FJINGIDA DISTRICT AT SINGIDA Before E. E. Kazinoto .............. Resident Iagistrate Hussein Abdaliah. . .. . ,. . . .......... .. . .Appellant versus The Republic ............................ .Respondent a CharEp 1st Count Burg1aiy c/s 294 (1) of the Penal Code Cap. 16 Vol;1 of the Laws. 2nd. count Stealin c/ 265 of the Penal Code Cap. 16 Vol. 1 of the Laws. JUDCBI'IENT ---- INZj The appellant was'châed with and convicted of burglary and stealing and senticed o five and two years iriprisonient respectively coi.currènt sentence. Dissatisfied with the finding and the sentences the has appealej to this court. • - .'. As rightly argued by'the learned state attorney there was ample evidence iupJicating the accused with the offences. The facts as found by the lower court can be briefly stated as follows- -. On 23/4/72 the complainant, Nariam (2W5), had her house burgled and her various items of clothing stolen. week later'on 30/4/72, she saw the appellant wearing a vest which resembled one of the vests stolen from her house after the burglary. She interrogated the appellant who replied that hc had bought the vest in a market. On being led to the market and asked to show the man from whom - he had bought the-vest, he pointed at a trader in the maket who denied selling, the vest to him. The complainant then decidedt.o send him to the police.. After having, been interrogated by the police the accused led the police to where he had hidden other clothes, These were amply identified by the cbmplainant (PW5) and other people (Pv!2 and PW3) as their clothes stolen from the house -. after it had been broken into. In his defence before the lower court as well as in his memorandum of appeal the accused insisted, that he had bought the vest from the person he pointed at the market.. He however does not mention how he came to be in possession of the other items of clothes — including chIldren clothes which he was found sqiling. Nor does he say why he found it necessary to hidethe clothes in a hole in the ground. /2 /2 3:1 I aree that clothes are items which easily change hands.. If the accused was found in possession of one piece of clothing e.g. the vest only — A week after it had been stolen from the burgled house the lower court could possibly have come to the conclusion that the accused was more of a guilty receiver than a thief. But the accused was not found in possession of one item of clothing only. lie was found in possession of various items of clothing, namely - vests, childrents clothes and khaniki clothes. These were, with sundry peculiarities identified by the owners as the same clothes stolen from the house after it had been burgled. And, to crown it all, the accused was hiding some of the clothes in a hole in the ground. This being the evidence I tend to agree with the Bepublic' s argument that the learned resident magistrate was perfectly right in conin to the conclusion that the accused was thore of a thief than a guilty receiver. And, as the theft took place after the ( )se was broken into, the inevitable inference is that it is 1e accused who broke into the house before committing the felony of theft. The conviction is in harmony with the evidence. 4 As to the sentence of 5 years imprisonnentA the offence of burglary, the accused admitted ten previous convi- ctions of offences involving eroperty. Light of these are for burglary, house-breaking and stealing. The accused wns last convicted of house breaking on 15/5/70. With remission he must have been released from prison sometime in October 1 971 On 24/4/72, hardly six months after his release from prison, he committed the present offence. The sentence of 5 years impri- comment is mandatory u/s 5 of the IJinimum 5entences Act 1972 as the accused was convicted of offences similar to the iresent one within seven years immediately preceding the date he committed the present offence. In the event this appeal fails in its entirety. A / DODONA N. i. Mi'TZJVA.S 20/11/73 Appellant absent and unrepresented. Chambakare for the Republic.