19730125 TZHC Mwanza

IN THE HIGH COUET OF TANZANIA - AT MANZA. HIGH COURT CRININAL APPEAL NO. 263 OF 1972 Original Criminal Case No. 239 of 1972 of the Distribt Court of Mwanza District at Mwanza before L. G. Rugaimukamu Rsq., P.M. JOHN NICHOLAUS SAGEKE .... ,, APPELLANT versus THE REPUBLIC .,....,.,. ,.., ................ RESPONDENT. .• iAGE Burglary c/s 294 (1) of the Penal Code. dAaONS FOR JUDGEMENT. ( EL-KINDY, J,: - JOHN NICOLAS SEGEKE was charged with and coii.victed of burglary contrary to section 294 (i) of the Penal Code Cap, 16. He was sentenced, to imprisonment for 3 years. He appealed against conviction and sentence. The appellant was absent at the hearing of this appeal, as he indicated that he did not wish to be present, but his grounds of appeal were taken into account. The respondent Republic was represented by the learned State Attorney, Mr. A.A.F. Massawe, After hearing this appeal, I quashed the conviction, and set aside the sentence imposed. I ordered the appellant should be released thrthwith unle-- ss otherwise lawfully held. I now give my reasons for doing so. The particulars of the alleged burglary read as fo1lows- ?IPARTICULARS OF OFFENCE: The person charged on the 12th day of February, 1972 . at about 23.15 hours at Lumumba treet within the townShip and District of Mwanza, Mwanza wegion did break and enter into the room of one JULITA d/o wALVATORY with intent to corilmit felony th ere i n .? The underlining is provided. As it can be seen, the particulars did not specify the nature of the felony intended to be coiamitted therein. It was, therefore, in violation of the requirements of section 335 of the Criminal Proo?dure Code Cap, 20, It was held, in the case of BAKLRI BIN YUSUFU vRiEI (1940) 7 E.A.C.A. p. 63, that the felony, to be committed in the dwelling house, should be specified, although failure to specify such felony will not be a fatal defect if the charged person was not thereby prejudiced. I would consider, later on, whether the appellant was prejudiced in this case, According to the eviUence, which the learned trial magistrate accepted, Yulita (p..i), the complainant, and Kostansia (P.w.2), were in their room, during the night of the 12th day of February, 1972. Yulita was one of the many tenants in the house of Ibrahim (P.w.3), who also resided in the same house. It appears that the house did not have an entrance door which could be closed. At about 11 p.m., the appellant went to this house and began to knock, loudly, at the door of the room of Yulita. The door was locked from inside. Yulita woke up and lit a lamp. She asked. who it was who was lcnocking at her door, and the appellant replied that it was him, and asked her to open the door immediately or else he would open it himself. Yulita did not open the door, and the door was forced open. Yulita said that the appellant forced it open. The noise awaKEned the owner of the house. He left the house and called in the PoliOe. Yulita said that she raised alarm, and other tenants went to her aid. The appellant was still found standing outside the door and, although it was alleged that he was holding stones, which he used in knocking at the door, they were not produced in court. And Police Constable Alphan Zanda (P.w.4) said that he did not see the appellant in possession of any stones although he was informed that the appellant had been knocking at the door with stones. The appellant admitted that he had gone to the said room, at that time of the night, after he had been drinking at Twiga Bar from 10 p.m. to 11 p.m., but he alleged that somebody, at that house, knocked him down, and that, in the process of faliing down, the door of Yulita was damaged. He claimed that he had not 1,------ - ,. IhIrI. .. . /2. known Yulita before that day. He denied that he ran away when the Police Officer arrived. The police Officer alleged that when. the appellant began to run away, he caught him before he had gone anywhere. On this ;evidenoe, the tial court found the appellant guilty of the charge. in his petition, the appellant said that he had gone to visit his con- cubine, Yulita, but he did not find her in the room he knew to be hers. Therefore, he said, he decided to pursue another g'irl, in the same house, but when he was leaving with the other girl, a man interferred and knocked him down while still in the room, He fell against the door which was then broken. He denied that he intended to commit any offence, whatsoever, and that he did not run away at all. He submitted tha.t the conviction was bad, The learned State Attorney submitted that he was unable to support this conviction for reasons IagThe with. The charge was filed und.er the provisi- os of Section 294 (i) of the Penal Code. The said provision reads:- "294. Any person who - breaks and enters any building, tent or vessel used as human dwelling with intent to commit a felony therein5 or •oc,,,.e,. is guilty of the felony termed 'house breaking I and is liable to imprisonment for forteen years. If the offence is committed in the night, it is termed. 'burglary' anu the offender is liable to imprisonment for twenty years." In a charge of. burglary, evidence should be led tc show that (a) there has been..a breaking of a dwelling house, (b) that there has been entering theréin, and (a) that the act was committed with intent to commit a felony. In thi:s case, parts (b) and (a) were not proved. The appellant, on the evidence of the prosecution, did not enter the room of Yu.lita although this was alleged in. -the particulars of the óharge sheet. The evidence did not dis- close what offence, if any, the appellant intended to commit in the room of Yulita,. it was most unlikely that the appellant intended to commit any ofience when he knocked and demanded to be admitted into the room of Yuita,. Had he been a thi', he would certainly not have disturbed the occupants of the house by "viblently" knocking at the door of Yulita., as that was the surest way of geting caught, It was doubtful wheiher.the• appellant ran away when he saw a Police Officer approachihg, and, if he did, this could be explained because of probable fear of the Police, rather than guilty conscience as the learned trial magistrate implied, If he had been a thief, or a raper, he would not have waited until the Police arrived, and certainly he would not have been left alone standing by the door without anybody - attempting to arrest him, As the evidence fell shovt of proving the intended. felony, it was impossible to say whether the appellant was prejudiced in his defence by the defect in the charge. Therefore, the charge was not proved. beyond reasonable doubt. For these reasons, the conviction was quashed, Delivered in Court on the 25th day of January, 1973. (z. N. HL-KINDY) 25th January, 1973. JUDGE. AppeiJ,sit - absent. Mr.Butambala, S.A. for Respondent.