19770723 TZHC Mwanza 1

141( , Z - gl". IN TH 1ICh CCUtT OF T7 12tNI1 iT V J olG -i C UT I? j. L 1FPEIL NO 73 OF 1977 (Original Criminal Case L85 of 1976 of tha Distict Coert of Bukoba District t Bakoba Bati'fe . 3. Chamriho, g8q., 'asiLnt istrate) • JOVINUS iSlKI1SiMON. • ................. .....•.. ........... . . . •. .LFF.LLPNT versus .' THEPUBL1 C. . ........ o 0 0 •• • •& • . .. ... ................- .• .••. . . . C CHRGE: 1st Coint BurJ..ry c11 s 294(1) of the Penal Cole Cp. 16 .•••• the V • .........•. • .. 2nd Count: Stao in:; c/s 265 o'f the Penal Code Cap. 16 cn the Laws. V JDGEqJNT. KT1T1, J.: . • V. Bukoba District Court, convicted the appellant of the two offences a cove — Burglary and 3te.iing. The some court sentended the Epeliant to three years imprisonment on ccunt No. 1 and 6 months imprisonmeit on 2nd count, sentences to run cnourrent1y. The appellant i appea1in against conviction. The ippellant raises non — issues in his memo of a.peal and chal1engo .re just confined. to dredib.ility. V The facts are st.roit forward. On 1/10/76 th. ôomplainaut a bar maid left her house 1ocke:., 'nd went for work at 6 p.m. , she o.re back at •, ll.p.m-o and everything. was airight. She left for a boy—friand'u h ome , but, when she came back in he er1y morning:, her house was already broken into and ±hins mci .,Linr., tress and bed sheets wo±'th shs.1 2 044/=' stolen therefrom. She reoltaci the matter to the Police St,tcn. On 3/10/76 9 the appellant wa tken to the Police Station on: the a1lcgation that he had broken into tPi.a dwelling house of Alimai another rs'on. J. The appellants' house was searched by P.2 .a Police Officer, and among the .articles.ceasel 'rarn the appellant's houa, was a motress and aed .shet, that P.2 subsequently identified es'kler property. On this videnca, the appe.lant w.s c.anvictedas charged, after the apnellantts defence that he bught tho matrees at Mwanza on 15/9/76 hal ben rejected. Hence the appeaL The facto that .daf halienge, are that, P2 1 the complainant's .lweiling h:u was broken into at night and goods stleh therefrom. .e have to bu:Li..Jc and we believe, tnatarohg the :ings stolen were e\ matress and a bd aduet. It is equally a finding of that fdm the appellant's hauoa, Wor& csed, among other things, a niotress and a bed sheet that the c'iapleinant idntificd as hers. The ap iant did in his defence maintain taat the two matresses including the ono ceased and found in his house were ILlS 1 .roperty. He so urges as foil. rs:- "I put my metress in my room and closed my room. I had another i.gger sponge matressa:nd 1 was mntending tu .. . ake it home at Ibwera." But, as the trial mag i s trae found, this claim can only be an after thought., or perilaps a piece of wisdom after the event. The appellant himself did tell PW.l B 4363 D/Cpl. ¶3':rnwol who co'nducted the search, that this ma tress was not his. P1 told t; court as follows:— "This, compi.- innn'b was able torecognise one. ...................• V sponge m.atress ; rihich had no cover as hers. It was still a new matress-. This was the matress the 'ccL-sed said hd knew nothing about." Perhaps, I would have qualms believing this, it not found consistent support from the testimon of PW.2 Namabu Mohamed who adds thus:- /2. • -.- - "The, search in the accused:'s house, was witnesses by the. hccused. himself 1 was also present ill L ns seardll.1, there were two matres s bf s'o'nge The hocused denied one of the SOflO motress as not being his, aharhd AT .tia ä'ii hot know who hd put it on his I am not oeing. -to. amag.ae.-hhc.t. Pl'l .. and P3,. got this oo.t- of the bluese iven Ph.4 nlias dwechun uo o roners further credence the evi:L.!)nce of P'J.l and Pi.3 when. he tstifis, that the oppe]Jant said "that one of the matress wasnot his rin *it he Jd riot know how it got into iin room." From the b , I air 'sa 'tthat, Athough, the matte,A,ynj und in his house, he went alon o;o'I .enying knowledge as to how it t into his house. Like the District Poo -t, :'4:',P. not nelp ruling that tb.o some was not his. Then, wuose proper -by? The complainant's identifictien of the same is so potent that it leaves nothing desirablei She Iescrlls, . first the sponge as follows:- 'It had been scratched at the centre by a pin. when I was WOL it hQme:' and had a red soil . patch on, it onP7 of?the sides." . ,. •.' These marks were observed by jAn trial court, and they have .o.b hean - challenged, nor has the coed lent in any way referred to them. to the bed sheets, the complainaie't pointed out three small holes, tn":t have not been. referred tci..byPtleo CLhfence either, with this evilenco, the altxotive of a feiding in favour of the appellant is difficult to'comeby. For not only. uoes the apu ct.t appear unawaie of the marks bG nied knowledge of the Spme at the. instance of the heat of the search. If in" his aefence, he turns abc.L1t to say, that now the projerty is his, one wi 1 have no difficultis in questioning this vacillation or fluctuations. I am rot theriore surprsou that the appellant's defence was rejected and 'I cannot say, it was '.ao:.iply rjected. The appellant urth.r d.rrnploins that Pv.l and P,2 were groat friends and that Fl hated him. I niece no weight 'on such a cothplaint,' for not only did the appilant net .ewamlne them on this hatred, but never even menti',ned. it in his. de±eiico. sven if I have to accept the ap?olJCnt' S contention, the evidence ,by.PP.3 and P1.4 who dont hate the aop';ellant guarantee that the Fi.l en. P'i.2 told the truth, The appeliahts defence had no value and its. condcronr'b ion to rejection was a deserved onS.' As the properties •wpro properly identified by the "compliment to be her property and e the appo eat' s claim to the same canoot ee sesta ined, the. only concluseon left i.'e -bc the convict ions and sentences met'ted out against the appellant. This means the appeal must be disniaced and it is. Del.iverd,this 23rc1.d:ip of July, 1 977- • p - --,.•-,•I. ',,,, -,- ,....\. at. .. KtTlTI MWANZA HiGH CPUT.. • '.. JUDGE.