19750225 TZHC Arusha

II THE HIGH COURT OF TA1ZATIA AT ARUSHA S APPELLATE JIJRISDICTION HIGH COURT CRIMINAL APPEAL NO. 274 OF 1974 ORIGINAL CRIMINAL CASE NO. 233 OF 1974 -.. . ... OF TRE.DISTRICTCOURT -OF MGFZA DISTRICT AT MU}ZA.. BEFORE - P. A. MWITA, Esq , District Magistrate SAIDI ALLY •.... . APPELANT224h 1975 • •: (Original Aso/sed), . versus . -• j .THEREPUBLIC.. ........................ .. .RESPQ.NDENT.T ------J (Original Prosecutor) CHARGE:- 1st Count:- Rouse breakingwibh intent to.commit a felony c/s 294(1) of the Penal Code. 2nd Coun.t:- Stealing c/s 265 of the Penal Code. SIThARY REJECTION . . . .PJVE,J. . . .• : ... In thy vew the appeiLlant was quite rightly convicted of Rouse-breaking and Stea1ng and I therefore summriy reject this appeal. . . . .. . On 19th May 1974 the house of P.W.I MOHAMED HUSSEIN at Kwasemwaliko, Muheza,wa bokèn into wh,en.he was away at the hospital A pair of troisers, a bed-sheet, and a pair of khanga:were removed from the hbuse. Thebed sheet, now cut up into pillow cloth, was traced to the appellant's house and the trousers were found with POW.2 BJIKARI JUMA who told the trial court that they had been sold to him by the appellant on the 19th of MaST, that is the same day they were stolen from P.W.I's house. . . The appellant agreed.that.the bed-sheet was found with him and that it was hew,p had sold Juma the pair of trousers. He claimed, however, 'that..Lthe things had been given to him by one ALl MSHAMO, a fellow-tribes-man who was indisposed and who asked him to sell the things to raise money for A],i to go to hospital. He kept the bed-sheet for himself and paid shs.8/= for it. The trousers he sold to P.W.2, at shs.30/=. Ali Mehamo vigorously denied the allegation although he agreed that the appellant did visit him on the material . ..ay. Like the learned trial magistrate I am of the view that the appellant was not truthful. P. 1W.2 said that when the appellant sold him the trousers he said they were his own but the appellant asked him no question in court. Further the appellant himself at least agreed that. he did not tell P.W.2 that the trousers were Au's. He said he told "one person' but he conveniently failed to disclose this person's identity. Again if as he said, he knew Ali to be a reputed thief he would certainly be more on his guard about selling things for him. • •1•• . ........./ 2 2 I believe the appellant committèdhe.crimes and with a previous record of theft he is....lucky 'b::h got no more thai only the substantive statutory minimum Vlhen,there. is. on. record evidence •whih.would tend to weaken a view point taken by the trial court the 'atter must not shut its eyes to, oi gloss over, such evidence A trial magistrat.e must face and coisi scheiëne- àñd.a.:Why he considert.hat..su.c,eyidence does not detract from..his view. In hetQords h ust è*pies h5s le.nes:.Of 'uch evidence and say why in his opinion the view he takes is sound notwrthtanding such evidence In the present case All MSHAMO, le.rlyc.laimed tha± MAMA NCHA,the othéviitor enhe was sick, was at "his house from the time the rp&llaPt arrivd until the time he left, thus suggesting that '"he, Au, had. given the, c1hss•-• allegd,MamaNcha would have seen this. Mama Ncha, howèIr, tO'Id"the dburt of trial that she was indeed already there when the appellant arrived but she left bdore he appellant did. All Mshamo was sick so his recollection of the sequence of events might have been somewhat hazy. L believe Mama Ncha was right on this aspect and that despite the slip by Mshamo there was stiiI-..enouh evjdence on which to convict the appellant. . •.Tjhe'learned District Magistrate should also have in:d'icated why be did not order compensation for the.,.pa'ir of khangas not recove'red and for the. .datiiaged bed-shé.et. b (L.. . M. •MAKAv1 JUDGE. . Arusha: 25/2/75. /MTPM. /