19730905 TZHC Mwanza2

b t %. a ~ 6"o, ,, IN THE HIGH COURT OP TANZANIA AT MWANZA. APPMJLATE JURISDICTION. HIGH COURT CRfl1ILAL APPEAI NO. 184 OF 1972 ORIC-IN.AL CRIMINAL CASE NO. 662 OP 1971 OP THE DISTPICT COURT OP SHINYANGA DISTRICT AT SHINYANGA BEFORE: E.H. MJ3iTYA ESQ., - RESIDENT MAGI STRATE. WILLIAM iLA.DOSIII . . . . . . . . . ..................e • , • . • • • • APrEILANT (original Accused Versus: THEREPUBLIC . . . .. • • • • • • .... •.•••.............. ... RESPONDENT (Ori1nai Prosecutor) CHARGE: Attempt Burglary c/s 294(1) & 380 & 381 of the Penal Code Cap. 16 Supp'. 70, - JG]lIEI'TT. MFAMLA, AG. J. William Madoshi hereafter referred to as the appellant was charged and convicted of attempted burglary in the court of the'resident magistrate at Shinyanga and Was senteneed to 3 years imprisonment under the Minima um Sentences Act 1972 and is now appealing against his eonvictioi. It is clearly shown on the record that the appellant was arrested by Sinya Koronga ('i) and Mohamed Seif (P3) while cutting wire mesh on the window of the house in which Mohned Seif residesT When theG two witnesses arrived at the scene they found that the appellant had completed cutting the wire mesh but had not gained entry into the ro.. He was arrested by these two witnesses. The 1iife with which he was cutting the wire mesh was seized aid he himself was taken to the Polite Station at the Mviadui Mine, The learned trial magistrate in a fully reasoned judgement aecepted the evidence of these two witnesses and rejected the appellant's theory of a frame up. I think that on the evidence before him, the.learned magistrate was entitled to arrive at the finding that he did. By completely cutting the wire mesh on the window, the appellant had gone beyond the stage of mere preparation of the intended offence.. He had not yet gained entIr in the room. Therefore the ingredients of the offence of attempted burglary were established the presence of iron bars behind the wi, re mesh notwithstandingi He was therefore rightly convicted and sentenced. In the result this appeal stands dismissed. Delivered in Court at Mwanza this 5th day of September, 1973. AG. JUDGE. 5/9/1973. MV7ANZA, 5th September, 1973.