19770419 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA AT ARUSHJi p HIGH COURT CRIMINAL APPEAL NO • 118 OF 1 975 C.F HIGH COURT CRIMINAL APPEALS NO. 119, 120 & 121 OF 1975 ORIGINAL CRIMINAL CASE NO. 175 OF 1974 OF THB, DISTRICT COURT OF ELUDENI DISTRICT AT HANDENI Before A.B'. LUGENDO Esq., District Magistrate f.ABDI sf0 SAILEHE • 2. SAIDI S/0 ISSA •. .. •. Appellants 3..KIROBOTO s/o KANDULU (Original accused) 4... MtJST.AFA s/o NASSORO ) versus THE REPUBLIC •. .. • .. •. Respondent (Original Prosecutor) CHARGE:' Burglary and Stealing c/s 294(1) and 265 of the Penal Code. 1* •.JUDGMENT' BIRON, J. - The four.appellants who were charged • • . together withanother man who was acquitted, were convicted' of burglary and stealing and were each sentenced to imprisonment for seven years; they are now appealing and • ' their appeals are consolidated. * In this judgment I am retaining the descriptions of the appellants as they were described in the lower court. • • • • It was established in evidence that on the night of 10th November, 1974, whilst the complainant was away from home, his shop which is comprised in his dwelling house was broken into and there was stolen therefrom a large quantity and variety of clothes and materials. In fact, the whole shop was gutted of alli its stock of merchandise. ivlariam Hussein (P1.2) testifi34 thai, on the night in questicn, at about 8 or 9 O'&..ock, he went to collect a dress which the complainant was ma1c.i• fo:' her daughter. '-4 -2- On arrival at the shop, she found three men inside the shop, and they were engaged in packing the merchandise in the shop into gunny bags. She inquired from the men where the complainant was, as he had promised her to have the dress ready by that evening, and they told her that he had gone to the main road to await the lorry which was to transport his stock which the men were engaged in packing into sacks, to have them transported to Korogwe. The three men were the first, second and third accused whom she Imew well. And she had every opportunity of seeing them as they were working by the light of a lamp. Whilst she was at the shop, she noticed two other men standing about twenty paces away from the shop, but she could not recognise them. She enquired from the three men who were in the shop as to her daughter's dress. The third accused who rents and occupies a room in the complainant's house, told her that the dress had been given to a boy to take to her home. However, when she got back home there was no dress awaiting her, The story is then taken up by Saidi Hatibu (PW.3) who is employed as a night watchman by a shop-keeper near the complainant's house. At about 9 O'clock on that same night, he saw the first and the third accused passing by the shophe was guarding. The fi:.'st accused was pushing a bicycle on which there was a very large and bulging gunny bag. The third accusec, was also carrying a large gunny bag. He asked them what they weie carrying, and the third accused told him that ti- s gunny bags contained the property of the complainant, which was being taken to a lorry parked down the road. The witness seated that he knew the two accused well, E- 2d he saw ther perfectly as he shone his. torch on them - d conversed wth them. - - - 3. - The evidence against the fourth accused is somewhat confusing. A witness stated that on the 11th November, 1974, that is the day following the burglary, he saw the first accused coming to the village where he lived euquiring where he could buy cigarettes and the witness pointed out a shop to him. The fourth accused was riding a bicycle on which was a plastic bag containing clothes. A woman testified that; on the 11th Novernber, the complainant came to her village enquiring about the burglary from her and she told him that on the previous day she had seen a trader pass through the village with a large parcel of goods in a gunny bag, tied to the pillion seat of the bicycle he was riding, but she could not identify any of the accused as the men she saw. The evidence against the fifth accused who is a pedlar, selling merchandise from door to door, was the finding in his possession some clothes which the complainant identified as his and stolen when his house cixm—shop was broken into. However, the magistrate found that the evidence against him was not sufficiently strong to justify a conviction, as the accused nct only produced receipts for the purchase of goods, but a nephew of his whom he called as a witness, testified that he had purchased some clothes in Dar es Salaam. And this fifth accused was acquitted by the court. The evidehce against the first, second and third aôcused is in my view, as it was in tiat of he learned magistrate. overwhelming. The reasor. given br the third accused for the two witness lying agfnst hut, j.S that they had a Erude against hini Howei i', like the learned magistrate:, Ihaveiio hesitation in ject.ng such allegation. .14 - 4- With regard to the fourth accused, although there was some evidence in addition to what has been recorded, as to his being connected at the time with a bicycle, like learned state Attorney, who did not feel in a position to support the conviction, I find myself unable to uphold it on the evidence against him. The appeal of the fourth accused Nustafa Nassoro is accordingly allowed, his conviction is quashed and the sentence imposed on him is set aside. If he is not otherwise lawfully detained in custody, he is to be released forthwith. As noted, the three accused whose convictions are upheld, were each sentenced to imprisonment for seven years. Itis pointed out for the benefit of the n.gistrate, that two separate sentences should have been imposed; one for the offence of burglary and the other for the offence of stealing. The two sentences so imposed are usually ordered to run concurrently with each other, But it is irregular to impose an omnibus sentence on both convictions. Although the sentence of imprisonment for seven years exceeds the minimum prescribed sentence by two years, as the property stolen was valued at more than shs. 5,0001= as so often remarked, the prescribed minimum sentence is not necessarily the standard sentence to be imposed, and I am far from pursuaded that I would be justified in interfering with the discretion exercised by the magistrate who directed himself on the seriousness and prevalence of the offence. -5- The appeals of the first, second and third accused are accordingly dismised and the sentenced imposed on themwhich require confirmation by this Court, are hereby coiffirmed. Delivered.in court at Dar es Salaam this 19th day of April, 1977 (fIlLIP. BIRON) JUDGE 19th Api 1 2 77