19770504 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA c APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 414 OF 1974 ORIGINAL CRIMINAL CASE NO. 209 OF 1974 OF THE DISTRICT COURT OF TANGA DISTRICT AT TANGA Before A. C. Mrema, Esq., Resident Magistrate HATIBtJs/o HASSANI vs THE REPUBLIC Cha: Shop breaking and stealing contrary to Section 296(1) and 265 of the Penal Code0 JUDGEMENT MAKAME, J. - The appellant HATIBU HASSANI was jointly charged with another person called MASHAURI SALEHE but the latter was acquitted, quite rightly if I may add. The evidence against the appellant was extremely good for he was locked in from outside, in the shop of PW1 ABDALLAH SAIDI, during the night of 28th March, 1974 in Tanga Township when the complainant went to his shop and sur- prised the appellant and two others in the act of virtually cleaning out his shop0 The other two managed to escape but the appellant was not so lucky0 Members of the public who gathered round the shop in answer to the alarm raised by Pl demanded that the appellant be dislodged from the shop so as to face what is euphimistically referred to as "instant justice0" He had to be rescued by the Police0 In his defence the appellant told an extremely tall story of his being attacked on the street and his taking refuge in the shop of an Arab. Evidently this was the very shop which was broken into the same night and, not surprisingly, the learned trial magistrate rejected this story. The appel- lant was caught with his pants down, as it were, and it was eminently right to find that he participated in the crime. It was right to hold that, even though the appellant was not found with anything satisfactrily proved to be part of the loot, in view of the evidence, he was working in concert with the others actually seen carrying away the things from the shop and that he must have known and intended that the breaking in would be followed by theft. However,' the appellant should not have been convicted for two different offences. There was only one count: Shopbreaking under Section 296(1) of the penal Code is a composite offence consisting of both the breaking and entering and the commissiq of a felony, which in this case was Stealing. I substitute for the two convictions a conviction for Shopbreaking and set aside the sentence on what was Qalled by the learned trial magistrate the second Count. I impose a.seritence of three years, the statutory minimum for the offence, the same one as imposed by the trial Court, (2). There are some small matters which need touching on, briefly. I think where .a trial. court imposes no more than the statutory minimum sentence the trial magistrate could : 'save. his time by avoiding mention of his intention to impose "a deterent and heavy sentence." He could not in any event impose any less, and predicatinga statutory minimum sentence with such a remark is capable of creating a wrong impression0 The magistrate .: may also wish to.cut down on homilies which can be more aptly accommodated in other forums0 He should also guard against unwitting statethents which can lay him open to misunderstanding and criticism: Being " a strong and a stout person" should not be made to appear to be a factor attracting "a deterent and heavy sentence." It is also important to stay close to the recorded evidence: The appellant did not say that he was "forcibly arrested by the mob, beaten up and then forced to be detained in the shop of the complainant0" I wish to add three other matterS one when complying with section 206 of the Criminal Procedure Code the record should indicate there and then the various choices an accused person has made, including whether he wants to give evidence on oath or make on unsworn statement0 Two, if the trial magistrate found, as in his judgement he says he did, that "the case is not even prima faciely enough to entertain any conviction" against the appellant's co-accused, he should not have put that accused to his defence at all0 Instead the learned trial magistrate should have found that there was no case to answer and, in accordance with Section 205 of the Criminal Procedure Code, dismissed the charge and acquitted the accused. Lastly, the owner of the stolen property should only have identified his things which should then have been marked for identification. Only the Police from whose custody they reached the court could produce them as Court exhibits (L. M. MAKAME) JUDGE DAR ES SALAAM, May 4, 1977.