19781215 TZHC Mwanza

II c. IN THE HIGH COURT OF TANZANIA AT W·Ul~A. . : .•. APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL·N0.246 OF 1977 :-,:· : lo~; :-\1.; • ' ' ... . . (Original Criminal Case No.502 of 197{ .:_,f' the' .· ,. . . . : '.' :. District -t~iirt ,· of Maswa Dj,strict at Maswa - before' SHILOGILE t DoM ._ ' ~.r, :· ·j ·• . . i . . S IF AEL. SWJ.SON •••••••• ~ o • • ., • • • • • ., • • • ~ ~ • ., • • • • ~- ~ ~ -APPELLANT (Original ·Accused) i" i r versus THE' ·RE.PUBLIC'·•••~• o •••it o •••it• o o o • ·o • o • • • ~ •·•·• • • ; ~ RF;SPO.NDENT ... ··•,i (Ori~inal Prosecutor) CHARGE: ist' count: 'Burglary c/s 294 (1) of .the' -P~n~l ·code Cap~l6 Vol.I.· ... .......o·G J U ----'-------· . ME N T . .. ;! . ... ): :! '· · • · Mustir . . t •J: •·... t,· ·- ·_:.:" . :' ~ ,,: _·, ·: . ,~1:1,e ·appellant, SIFAEL SAMSON, was charged· on: two counts. The first count was burglary c. s 294 ( 1-')·· of' 'the P~nf:11 ·cod~ and the second o~e wa~ theft c/s 265· . . 'of: ·t-~:~~.Penal . Code. The appellant was sentenced to five years ?n.t~e .. f'ir·st count· twelve months on . the and second count and . ·,. t~e se~tences ·were ordered-~o run concurrently. He is appealing against conviction and sentence. The appellant was a neighbour of the complainant. The appellant is alleged to have taken complainant's lamp. When the complainant followed the lamp in the appellant's house, she saw her bed and ma tresses which items were : : among several articles stolen f'rom, her room sometime _in November, 1976 while she was away on safari. There was evidence that the complainant's house· was broken into and the matter had been reported ·to the Police bY herson- P.w~2. who was staying in the room. ··According to ·the- witnes.s. • P~W.2 F:i:kirini, he went out in the evening to eat aild when,he.came back he found the pad lock on the door broken and several items including the ~atress and a bed stol~n. The appellant denied·to have stolen the bed and the matress as alleged. In his long memorandum of appeal, the ap~~llant stated that the complainant had an opportunity to· observe and mark the b0d and matress and thus the witnesses were able to state the same in court. The appellant stated that the case waa first referred to the Primary Court where the complainant was an aassessor and later transferred to the District Court where the trial was conducted • • ~ •• /2' In 2 L In the evi~¢n¢eas.recorded by the trial magistrate, the witnesses des.ci:-=i:bEld the bed vnd the ma tress by colours .and.. pointed ·r· ,· out other_ marks which the learned tri"-1 magistrate found them to be special marks. The trial magistrate did consi- qer ~he fe:ct: that su:ch items as were the subject. of _th_e charge , are_ common ar'.ti.cles which any one could own but the learned _ma:gistrat~- was satisfied that the witnesses had identified the i.'tems· to his satis_:factiono He believed the witnesses and ;he saw the marks and : the way the marks were described. The . ,. ' . .- . · appellant has ra,;ised no sufficient reasons or grounds for this ~ourt · to differ with the finding of the lear;_ned trial · magistra·te. The allegation that the compliiinant had marked or c;>.l;>esrved the marks when the same w.ere .sent to the Primary Court was clea~iy denfed by the complainant: ;~ho' ~aid that once the beds were taken from the appellant's house by the Police, they were not returned t~ •he·.r "h~~c::-c the trial. I find this complaint not jubtified, On the evidence as recorded in the lower court, ., :1;._ am satiE;i:fied 'that 'there was enough evidence on which the :..r;-;··. trial magistrate ··cbrroetly ·a:cted and co~victed the_ ~ppellant ,. • . This, appeai therefore :fails. and 'it is 'accordingiy .dismissed. ·, . ·_.' -~ .. ·. . . Re'.garding the sentence of five years, , i t was reason.able, having regard to the fact that the appellant had.,o_the~p~e'yi<>µi!J. convictie>ns which he admitt'ed ai1d there is no reason ·,.. to . ,:· I , • .,.: ._.;., interfere with :i. to 1 • ·,d,0~~ ~-,:;s.-- 15/l:2/i8 ' Co·ranf: N •. M. Mus hi? _J.,. Appellant: Present in persone Mro Massaba: for the Republic Judgment read in chambers,, ..TFDGE;, .•... /J