19790517 TZHC Tanga2

M( 6 sem - .4 •:' a IN THE HIGH COURT OF TANZANIA 11 AT TANGA APPELLATE JURISDICTION CRIMINAL APPEAL NO0 21 OF 1979 (Original Criminal Case No. 159 of 1977 of the District Court of Tangá District at Tanga .' BEFORE: C. NINDI, Esq., Resident Magistrate MUNGO WALLACE : : : : : : : : : : : : : : : : : APPELLANT " (Original Accused) Versus' THE REPUBLIC : : : : : : : : : : : : : : : : : : : : :RESPONDENT • ' ' (Original Prosecutor) • .'• ' -' i'S' CHARGE: Burglary and Stealing - cdntrary to sections 294(1) and 265 o#the Penal Code, rspectivel. 'JUDGMNT NYALALI, C.J0 '- This criminal appeal originates in the District' Court oE Tanga District 'where the appellant Mungo Wallace @ Mussa Wallace"wasjoilitly charged with four other per.ons'with the offence of burglary - critrary to section 294(1) of the Penal Code in the first count and'theft - corary to section 25 of the same Code in the second count. At the trial in the District Court the appellant 'appeared"' as the first accused.' The others' appeased as second, third, fourth• and fifth accused,'and the' re all acquitted by,the trial court but the'aPel1antwas'convi'cted as charged and was sentenced t'five years' ithprisonment on the firt'count and one year imprisonnent on the secOnd count - both sentences to run concurrently.' The appellant was aggrieved by the convictions and sentences and • hence this appeal to this COurt. At the hearing of the appeal the appellant appeared In person but had nothing to acd to what he had stated at length in his'memorendum of appeal, The Republic,' however, was represented by Mr. Sekulé, learned Principal State Attorney. I have carefully examined the evidere adduced at the trial in the District Court, the judgment of the trial court, the memorandum of appeal submitted by the appellant to this Court and the oral submissions made by the learned Principal'State Attorney -2- at the hearing of this appeal, and it seems there is no. ciispute between the parties that during the night of the 20th/21st January, 1977, the dwelling house of P.W..2•wàs broken into in Raskazone in Tanga Municipality and various household properties were stolen therefrom0 On the 21st January, 1977., P.W1, who is a policeman, visited the saene of crime to.search for finger prints. He discovered finger,.printsiimpressions on the glass of the broken front door of P.W.2's dwelling house. PØWO1 photographed the finger prints impressions and subsequently sent them to the Identification Bureau in Dar es Sa1aam Later a report was received by P.W.2 from the Identification Bureaui'n'whichone 'Mungo Wallace @ Mussa Wallace was mentioned as being the person whose finger prints impressions were discovered and photographed by P.W.1 at P,W.2's dwelling house. Subsequently, the police took finger impressions of the appellant also sent them to the Identification Bureau in Dar es Salaam for comparison. Later a report was received to the effct that there was an identity of the appellantts finger prints and those previously discovered and photographed, by P.W.1. Furthermore, there is no dispute that on the 2nd March 9 1977, that is, about a month and a week after the burglary of P.W1's : dwelling house the room occupied by the appellant was seahed by the polièe and various suspected household properties were., found and seized by the police including Exhibit P1, which is a table, and Exhibit P21, which is a table cloth. These exhibits wer6 subsequently cla,imed by P.W02 as being among the properties stolen from her dwelling house during the burglary of the 20th January, 1977. With regard to matters 'ihich are in dispute in this case, it was the prosecution case as laid out at the trial in the District Court that the appellant is the person who burgled P,W.2s dwelling house and stole her property. • On the other hand, the defence of the appellant consisted, in a general denial and in an assertion that the finger prints I J . 4 . used by the prosecution in this case had already been used by the prosecution in another casey that is, Criminal Case No. 419 of 177. The first point for consideration and decision In this case, is whether the finger prints used by the prosecution in this case had been used by the prosecution in Criminal Case No. 419 of 1977. I have examined the record in Criminal Case No, 419 of. 1977 of the District Court and it would appear that the case did not involve tj the use of finger prints by the prosecution and so no finger prints were produid in that case. - In his memorandum of appeal the appellant asserted that the finger prints used in the present case had been used by the prosecution in Criminal Case No, 190 •of 1977. I have also examined the record in. the case of Criminal Case: No 0 .19Q. of 1977 of. •the District Court of Tanga District and it is apparert . that the finger. prints in that case are distinct from those. used in the present case. On the basis of the evidence, therefOre, I fnd.it is a fact that the finger prints used in the presènt.cse are not the same as those used in Criminal Case No 190 of 1977. Tbenext point for consideration and decision in this case is whether Exhibit P1 and Exhibit P(C2' were properly identified as being partof the property stolen from the dwelling house of P.W+2.. PW.2 in her testimony was able to point to a unique mark (letter, 'H') which appears on the;tabl.çlotb tendered at the trial as Exhibit P'C2' 6nd dhe'tated to.,the effect that '. the letter 'H' was put by hersel' and it rapresents herf1rs - . name, that is "Herieth". With regard to the table which was tendered at the trial as Exhibit P1 there was no specific mark on 'the basis of which P.W.2 could identify it with confidence in court. 'I however find it is a fact that Exhibit P'C2' was sufficiently identi- fied as being among the property stolen from the dwelling house of P.W.2. Th e next point for consideration and decision in this case, is whether the appellant is the person who broke Into the dwelling house' of P.W.2 and stole her property during the night of the 011 -4- 2Oth/2lst Jan1ary, 1977. The material evidence, relevant to this point consists of Exhjbit P'C2' and the finger prints... Since Exhibit P'C2' as found in' the possession of: the appellant only a. month-and-a-week after the burglary, and since theappellant's finger print's were fund"at.the.sene of arime, there can be no other reasonable conclusion except that it is the appellant who broke into P.W.2 1 'dwelling h.ouse and stole.her property. He was, therefore, properly convicted.,, G With regard to the effective sentence of five years' imprisonment, the trial court decided to impose it on the basis •that the appellant had previous convictions for similar offences. According to the record of the trial court, the previous convictions Which were taken into account by that court were committed in 1977. Since the present offence charged was also committed in the same year of 1977, the question arises whetherit was proper to treat the other off ençes as Previous.. to the pre3ent one for purposes of sentencing. Qbviously, it was wrong . since.. those -es and the present one appear to have been commtted by the appellant at about the same ttme, and non"e, therefore., can be said to be previous to the other, This means, the appellant must be treated as a first offender, in. the present ca se ..,:rTh± .being the position, the sentence of five years' imprisonment must be reduced. In the firi'al analysi, therefore, the appeal against the conviction is dismissed but the appeal against the sentence succeeds' by reducing the sentence.. o th'e,first.:count'to three years' imprisonment which is frie. minimum sentence i4nder.the Minimum Sentences Act, 1972. This sentence is to run concurrently with that imposed on the second count, with the result that he will be jailed for an effective sentence •E three.years in the present case :( F. L. NYALALI CHIEF JUSTICE . . . .15 -5 * Delivered in Court at Tanga this 17th day of May, 1979, in the presence of Mr o Sekule, learned Pincipa1 State Attorney for the Republic and the appellant present in person s I C F. L. NYALALI CHIEF JUSTICE 0