miraji juma another vs republic 2013 tzhc 2089 1 december 2013

IN THE HIGH COURT TANZANIA r AT TANGA CRIMINAL APPEAL NO. 27 OF 2013 [Originating from Criminal Case No. 148 of 2013 in Lushoto District Court at Lushoto] 1. MIRAJI JUMA 2. JAMALI AMIRI ...................................................APPELLANTS VERSUS {■ THE REPU BLIC ...........................................................RESPONDENT JUDGMENT U. MSUYA, J. « The appellants, Miraji Juma and Jamali Amiri were charged and convicted with four counts of Criminal trespass, house breaking, stealing, and malicious damage to property contrary to sections 299 (a), 293 (1) and 295, 258 (1), and 265 and 326 (1) of the.Penal Code [Cap. 16 R.E. 2002]respectively. The charge in respect of 1st accused alleged that on 7th day of July, 2013 at 15.00 hours at Makose Village within Lushoto District in Tanga Region the appellants with intent to commit an offence entered into Residence of Omary s/o Shafii. It was also alleged in the second count that on the same day, time and place,, the appellants unlawfully break and entered into the house ot Omary Shafii. It was alleged in the third count that on the same day, place and time, the appellant atter breaking into the house ot Omary s/o Shatii they stole Tshs 600,000/= the property ot Omary s/o Shafii. It was further alleged in the fourth count that on Ihe same day, place and time-the appellants damaged one door of the house of Omary s/o Shafii worth 50,000/= Tshs. The appellants denied the charge. The trial court found them guilty and convicted them. They were sentenced to serve one year imprisonment in respect of the first count, five years imprisonment in respect of the second count, three years imprisonment in respect of the third count and five years imprisonment in respect of the fourth count. The trial court ordered the sentence to run concurrently. Basically, the material facts which were established at trial are summarized as follows: Asiatu Omary [PW1] is the wife of Omary Shafii [PW2]. They are living at Makose Village within Lushoto District ♦ in Tanga Region. On the day of incident [i.e. 07.07.2013], the appellants arrived .at the home of PW1 and PVV2. They introduced themselves to Asiatu Omary [PW1] as witch doctors. They also inquired the whereabout of P W l’s husband. Following P W l’s reply * that her husband was attending treatment at Lushoto, they forcedly entered into PW2’s house alleging that PW2 was a w'izard and they wanted to heal him from the use of witch crafts. According to PW1, in the course of entering into the house, the appellant broke the outdoor of the house. Inside the house, the appellants searched the house and picked a bag from the roof. They hanged an idol on the outdoor and ordered that PW2 should look for them, if not he will die when he enters into his house. They handed over 50,000/= to PW1 and escaped with the bag. This piece of evidence was confirmed by Omary Shafii [Pw2], the husband of Asiatu Omary. PW2 testified that on the material day, he was attending treatment at Lushoto hospital. The witness received information from Sufiani Omary that his home was invaded by two people who later on escaped. Immediately, PW2 decided to return at his home. Upon arrival, he noted that his bag which contained 600,000/= Tshs was missing. He was notified by his wife that it was forcedly taken by the appellants. Pw2 reported the incident to police but he never mentioned the police station where such incident was reported. It is on record that the appellants were apprehended, charged, arraigned in the trial court to answer the charge in respect of four counts. They denied the charge, but basing on the evidence of PW1 and PW2 the trial court found them guilty of the charged offences and convicted them accordingly. The trial court proceeded to punish the appellant by ordering them to serve a concurrent sentence in respect of all four counts and ordered them to return 600,000/=Tshs to the victim and pay 500,000/=Tshs as compensation. Aggrieved with both conviction and sentence, the appellants lodged this appeal. Basically, in this appeal, appellants are 3