19730309 TZHC Mwanza5

IN COURT 01 ThN NL. AT M7JtNZA. • HIGH COURT CRIMINAL APPEALS Nos. 402 iNP 403 OF 197 2 r.gina1 Criina1 Case io 105 of 1972 of the Di4ot Qourt Mwazis•t±iot at Befoi H. It., 1swni, Es4; R M. tiN]) ANOTHiR ...; ....,,......,.,. APP±!LLANTS V versus THE RPUBLIC . bHARG:: House breaking and bioaiing 6 /6d 294 (i) 2.6 bf.th • FX1 Cod.j, V DGiiNT,, KISANGAj J. Th •'€wo appellbinis wee jointly eo.nvjdtèd dfhos,e brking anc stealiiig d 6itáy to S ecti o ns 294 (1) and 265 respectively o i~ lth6 Penal Code and we r e each 1eàteed to 3 years' imprisoninnt on the h6ise brea4g count and 12 mothg' .impriSoment on the stea1in count; the ntexes to run ooncurrezitly. They have now appealed • • • • V The doinplainant (P..2) testified that she locked the doo to her house and went away at about 5 o'clock in the evening Ca corning baciz at night • noicd that he doo was open and on entering the house she found that her clot-lies were i toleil, These clothes were later found in a room which V V óccüpied by b o th appellans. : •• V : The ape11ani Char'ies in his swostarnent of defense sa i d in effO that the comp1ainazt was his ii1 friend aid ihat ehê left the cloths it question iñbis hou'se when she was liVifl b rith h.1n there TheV second aDe 1 it : A••bdu elVec+ed to say nothing. The 1eax'zied triäi ing±strai ree•. td he cth: ei of the appe1la* Chaies. f Hspd onvic;e( b6ih appella- nisf as stated earii r. • V : : •• • ,• . ., .. • The only evidence agaiimt the appellanVt hbdu as that th clothes alli to be sto1-ej wer font1 i-n a room which was ó&pied by hieiself and harle Charles, hever, ata*id that the 61othe beon to the oDlainant, his friend1 who }et tthem in thaf room when zbe was living viith hiid theie. Thu 'that Charles sayar would seem to exonara-te Abtht. In other, words it oulct a ) ) thai a)ig a?p.l1an Abdi was found in this i6om, he •dd not, iiave a7 •conbI ovè the, e1othes j- j: the .appe1ian •Charle who ra:fly bad, contro over the c1the and had ownership theof. In tbae c.iràunsances T . thik that the ael1ant bg.0 cola not prope1 be oonicted f stealing the clothes nor ofr bx4a king the omplainant' v, hous. The ac&ocate for tht Republic di-d. not see* fo sipp* the conviotTon of thxs appellant and I alc thirik t-'hat fhheF eviden,e addued was not suffiiant ltb conneet this appellant with the offus baed Consequezrtly the appoa' of the appellant Abtht Rashidi .i a1jwd. ifs conviction and sentence are set astde and it is ordered ta .hs- b e. rg-iea.sed uliless óthvjjs..e .lawf-ullr he1.d ix- tpdy; for the 4pe.l1amt- Cnarles,. I am of the vi..w that the til TIagitrot. rig1y reeeted his defncc that the clothes krer ~ left in hts nouse by too ccplei-nant, his grl fri-end, hen-she was l -i-vin, wrth birn te'e.. ther were a graii ef trirth i the allant'' a11aa-taon, one wo1d et nirn to 7`aItB7 thSi &efenee- sit the earlies- opportirm i..j nen lis was qest.oned by the po11e. 1t is strang& boweve' that on - be-in asked by tbe- po1ic he S1L that the c.&thes were .tits and he made no s1iggs1cn ttha -t te ctjnplauiant wc b owner of scth loth or was his irl fri'end rrtteimor while 'the comp1ainat was- gi'vin ez-deric-e in ctnirt the ap ellant .xiever gesed to i-r n eross—aminaton that she lef± 'thcse elotkiea in his room tr tb she tc ins girl frienL. In tthoe- circuins-tanoes I am of the view the aned trIal...ma.gst ra t e was to .ej.e the ppcI'lax.s d- eYe ini as Iihis mem andwii of apeal the apcllant alleges ha't hs ts.u'zied down his retluest to call tthre t neos who woud ims' zstify that the omp1 nant w64 hi-s apelan- 's) gir' f ru enc. Thi ( Jea on howe'ver ap ai- to be- wi'±hont subs±ance cc ora.i n to the retr t4 apeilV. it haã on.j ohe wnees to cali ç if 'the appe11an ga-ye his deneeon 30 '2 case was adjourned five tames 1i1t cLwran, tiusperiod 't1'defe witn. ... . S S •S ••• S • / * could not be traced, and when the case finally camc up on 17.5.72 the a .r btatd that since his wit1tes cannot be traced hL vOld leave it to the ourt to gie iis ju dgemeht6It would si eem ' ft , this that the appellant was duly affdea o afliñg his itñiss but th a t the witns did not give -e ,V!d6,iiz ,6 simply beaue he gould not be traecd. To My ininti the court ooi1a. hara1ye held to blè.ne x suh ta1e 1he ethst g Pbdfidg of - appaI db t i&ise a pAhtis o' tlaWta tiiz e and thGOt .1 ath of the view that the 'àpéilàM ia •pi ote t •iue reakig ad ;sling i mitoe apeilät o1 he t'1al mei tate that he *as s e•vi ng a two yea' e'1itn&e anothe offence4 t tu.s ourt did ntt find o\.t h.at thai other o'fc wi At the neariYig 6,f tih.is pp1 tht a,ppe1lat ±epatea that at the time h ws ôonvited foi' thi bffen rhe lWais ZerVi2hZ a tontence f 2 p.s 24 b o-r tured out that 4p1IaM has A preV ic ua- S oo t1fl.. I £wan Frinry cd+t iiM C'N. -54/72 ho cras on 29/.I/72 aotsd of ng1aj and stealing -&nd. *as *'Mencca to 2 iP" imp soriizt ?ltS 24 tDOrk$ of. cora-'l •' . Jjs tr•it irt. :a4 Mwai (M il pp'a4 iJo' 24'/) ecL. -'Dh i of'&i'ièè Md ±fO14 in rm • oEtth1 -oT the iMi±m .thioes ktt 19~ ppiath hötJLd. e ricd %o a itm fe i's jpi' met. w1%0,6e b 12 monthW im ons1 ip os ad *h ifpec't t h, a o±ct 'f eah rthbt Sa to xc'&ve.. iib'lt etikhia'k tmjiv riibftion fs, and 'he appel gar :sIteno fiowed tb the •ëti% th h;e ntee o 3 ye :i1'onme r ci ead tone dt 5 yeas - sa4 ear1ie tie ap d4014AA is lbied :4 I I / v 9h • p11an- M, 6 he 1R1&ià.