19741115 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA £ CRIMINAL APPEAL NO. 211 OF 1974 • Original Crimánai Case No, 183 of'1973 of the District Court of Ngudu District' at Kwimba before P.B. Mponzi, Esq., District Magistrate .APPELLANT: versus • THE REPUBLIC .............,............... RESPONDENT • JUDGMENT SAIDI, C.J. In this case the appellant was convicted in the district court of Ngudu of burglary c/S 296(1) of. the Penal Code and sentenced to three years imprisonment, It was alleged by the posecution that the appellant had burgled into the house of Luheméja Ngóhehera, P..W.2,ln'the night of 30th September, 1973 and attempted to steal movable property therein. Luhemejats mother, Yakwila bt. Shenda, P.W.l, was awakaned by someone who touched her0 She shouted and her s togetl?er with other neighbours came to her aid. It was noticed that someone was inside the house 0 He was asked to dome 6it'ut he would nô and Luhemeja struckhim on the head with a st.ck..Hewas then dragged out. but managed to escape before he was identified. In the same night the appellant called at the house ofDionisi Mudo; P0W.4, and asked to be let in as he had been beaten and injured. After noticing that the appellant was severely injured on the head Dionisi went to call the cell—leader and the neighbours. Luhemeja identified the appellant as the person who had broken into his mothers house after seeing the injury on his head. The defence of the appellant is that he had gone to one house in the village to enquire about the way to Ngudu. It was then about 8.00 p.m. He bid "hodl" but the persons inside did not reply. As he left the house someone called him. Some people came out and started t uéstion him.' When he refüsed to beearchd one f 2t1iese persons struck 'him on the head with a 'tne,' Then they took'1iJth sOme"distiàe awy fr the house and robbed him' of shs.173/15. •{ e r : tol'd the 'court that he 'recognised' the 'coffipIeinànt, LueiTieja'and L'ubiñza P.W3, 'as' ainonst :the. persoris 'wh.o':a€tkéd and r&bbd him.' He s'aid that afier being"robbe hewentt6 a houèe nearby and ked for 'help. The cel11eader and the neihbour' were called rid he pdin€éd' ot 'Lühemeja 'as the peon who 'asaul€ed h1nL He'weñ On to sa' thé€ Luheñieji was a'reted and harged 'for aaing€i :. and robbing hilt. -Aftei thishé (the apeilnt)' wasken€ohptal where he was treated for 3 days.. . .2 2 . These are the facts. The learned trial magistrate accepted the prosecution version and rejected the defence of the appellant. P.C. Mtali who investigated the case was called by the appellant as a defence witness. P.C. Mtali told the court that he was called to the house of the Ward Executive Officer. of Walla who informed him that the appellant had been assaulted when he entered one house. He went to the house of Luhemeja but could not see any signs of breaking. He was also told that the appellant appeared to be drunk that night. On careful consideration of the facts it does not appear that the offence of burglary was established. The police saw no signs of breaking into the house. It is againEt doubtful whether the appellant would have remained in the house after the alarm was raised if he had broken in to steal. Had it'been so he would have ran away immediately the alarm was raised by Yakwila. Furthermore if he had been found in the house and beaten there he would not have gone to the neighbours for help but would have left that village altogether. I do not think that the investigation of the case had brought to light all the facts surrounding this lnàident. I: would in. the circumstances allow the appeal, quash the conviction, set aside the sentence and orOer the release,of the appellant in so far as this case is concerned. Delivered in Court at Dar es Salaam this 15th day of November, 1974, (A. Saidi) CHIEF JUSTICE