19750818 TZHC Dodoma

,. s. . - Pei IN THE HIGH COURT OF TANZANIA AT DODOMA UflT APPELLATE JURISDICTION . IPA HIGH COURT CRIMINAL APPEAL NO. 297 6F 1978 OCT1975 ORIGINAL CRIMINAL CASE NO, 408 OF 1973 OF THE DISTRICT COURT OF IRINGA DISTRICT AT IRINGA Before P.P. Moyo. . . . . • • .Resident Magistrate CHARLES NYALUSI, ' 0 0 0 .Appellant (Original Accused) Versus THE REPUBLIC0 • . .Respondent (Original Prosecutor) Charge: Burglary and stealing c/ss 294(1) and 265 of the Penal Code. J U D.G N.E N.T MNZAVAS, J. The appellant, Charles Nyalusi was jointly charged with two others (wh.o have not appealed) with burglary and stealing c/ss 294 and 265 of the Penal Code. On their conviction they were each sentenced to 5 years imprisonment on the charge of burglary and 10 months on the charge of theft. The sentences were made to run concurrently., Dissatisfied with the conviction and sentence the accused has appealed to this court. There was undisputed evidence that in the night of 24/8/73 one Kabirdin }Cassam (P1 ,11) had his house burgled and his clothes stolen. About two weeks later, on 0/9/73 be exact, the police acting on information received conducted a search in the house of Jackson Samwel (1st accused in the lower court who has not appealed) and found a pair of trousers and a bluejacket hidden inside a mattress cover. Eleven other items of clothing were also found in 1st accused's bedroom. All these clothes were, with sundry peculiarities,, identified by the complainant '(PWl) as among his clothes stolen from his house after the burglary. On the same day (8/9/73) the police received Information that one, Bartholomeo Mwenda, (2nd accused in the lower court who has also not appealed) had hidden a,bundle of clothes in his garden.. On being interrogated about this allegation Bartholorneo denied having any clothes in his garden. The garden was searched and a bundle of clothes (exhibit 18 — 33) was found hidden in tall grass in the vicinity of his garden, Thereupon Bartholomeo claimed that the clothes were his personal property. Like the clothes found in 1st accused's bed—room these clothes were amply identified by the complainant as among his clothes stolen after his house had been burgled. As to the evidence touching the appellant, (4th accused in the lower court — The 3rd accused was acquitted), the court heard the evidende of one, Jonathan (Pw4) who told the court that he had bought a shirt he was found wearing and two others (exhibits 35 and 36) from the appellant. These, shirts were again identified by the complai... nant as his clothes stolen from his room on the material night. - One Richard (PW3), was also found in possession of two 00 C 00 00 4;/2 11 - 2 --" shirts which he said he had bought from the appellant in the presence of Jonathan (Pw4) as he (PW4) was buying the three shirts from the accused. The learned resident magistrate accepted the evidence of these two witnesses (PW3 and PW4). as credible and rejected appellants denial that he did not sell the shirts to the witnesses.. The learned state attorney argued that as the trial magistrate had accepted the evidence of the two witnesses (PW3 and PtZ4) as truthful the appellant was, it was argued, rightly convicted of burglary and stealing. With respect to the learned state attorney I agree with his argument that the case against the appellant was based to a large extent on the credibility of Jonathan (PW4) and Richard (PW3)e I would also like to add that the trial magistrate was, prima fade, in a better position than this court to decide the question of credibility. It is only when it is amply clear that the trial court acted on a wrong principle or misdirected himself in arriving at its decision that an appellate court can properly interfere on the question of assessment of the credibility of witnesses. It is in this light that this appeal has to be looked into. The two witnesses (PW3)' and PW4) were themselves persons with an interestyof their own to serve in that they could, on the facts, be charged as guilty receivers. But from the evidence of these witnesses it was amply clear that their possession of the clothes was innocent. Indeed they only agreed to buy the clothes from the appellant after the appellant had asured them that he had bought them from an Asian0 This being the evidence the learned resident magistrate was right in acting on the evidence of the two witnesses although their evidence was not corroborated by other independent evidence. In my view the evidence of these two witnesses was not inherently improbable as to require corroboration by other independent evidence. As the appellant sold the shirts to the two witnesses less than two weeks after they had been stolen from complainants house, the learned magistrate was perfectly entitled to invoke the doctrine of recent possession and find the appellant not only guilty of stealing the shirts but also guilty of the offence of burglary which preceded the theft. The sentence of 5 years imprisonment on the charge of burglary is mandatory u/s 5(d) of the Minimum Sentences Act? 1972 as the value of the property obtained during the commission of burglary exceeded shs. 5000/= As this sentence was ordered to run concurrently with the sentence of 18 months on the charge of theft the appeal against sentence is also incompetent. In the event I agree with the learned state attorney that this appeal should be dismissed in its entirety and. I so order. DODOMA . NNZ-- *S 18/8/75 JUD3 Appellant - Absent and unrepresented. Mbilinyi for the Republic/Respondent1'