19710910 TZCA Dar es Salaam4

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IN THE HIGH COURT OP TANZANIA AT DAR ES .SALAAJYI High riouz't• Criminal Appeal I1. 319 of 1971 Original Criminal Case No. 274 of 1970 1 , of the District Court of Masasi Distriót at Masasi boforeB, A. Mikidadi, Esquire, District Magistrate .IOiiiID TvTSSA . • . . . . . . . * . * . . . . . . . . •. . . . . . . . . . . A?PELLANT (Original accused) versus THE REPUBLIC . .. . . .... .. ....... .•.. .... . RESPONDENT4. . . (original Prosecutor.) Charge. Count 1: Housebresking contrary to section 294 (1) of the Penal Code. 2: Stealing contrary to section 265 of the Penal Code. MRO J. The appellant was convicted of housebreaking and stealing, and he was sentenced to imprisonment for two years and twelve months respectively, to' run concurrently, and. he was awarded the statutory twenty four strokes corporal punishment. He is now appealing. Evidence was given by the complainant and his wife to the effect that on the morning of the 26th of August of last year their house was broken into during their absence and a considerable number and variety of articles si].en, including a radio, clothes, a pair of shoes, and also some clothes belonging to a man staying with them. One MshutI Paki, who described himself as a watch and radio repairer, testified that on that very same day, the 26th of August, the appellant came to his shop with a radio and asked him to equip it with a new speaker.

A police officer testified that he found the radio in the shop of this last witness, and the serial number corresponded with that on the receipt handed him by the complainant, and he arrested the appellant on the 31st of the same month. When the complainant saw the appellant he identified the clothes the appellant was wearing as his and stolen when his house was broken into. Likewise the complainant 's wife also identified the radio and the shoes, and the man staying With them identified a pair of trousers found in the appellant's possessibn as his. Jol'ui s/c Kasube, a self-employed caxonter with whom the appellant was staying at the material time, testified that on the 25th of August he went out to do a j ob in a neighbouring village leaving the appellant at his home. He returned on the following day, the 26th, when he saw in his house a radio and some other property, and the appellants girl friend told him that they belonged to the appl1ant. This last item of eviden.ce is hearsay, but 1 have referred to it for reasons which will hereinafter appear. The appellant when he came in asked him to t akè the radio to Nahuti to repair He however declined and the appellant took it himself, with the witness following him, and he saw the appellant leave the radio with r4shuti. The appellant elected to give evidence on oath and called no witness. He not only denied the offence with which

he was charged, but he even denied having taken the radio to Ishuti and asserted that it was his host John who had taken the radio to Mshuti for repair, and at John's request he had lent him ohs. 25/- to pay for the repairs. With regard to the clothes he was found wearing and which the complainant identified as his, he said that they belonged to his host John, who had lent them to him whilst he sent his own out for washing. • Not surprisingly, the magistrate convicted the appellant as charged, as the evidence against him is, as I think sufficiently demonstrated, overwheiing, In ±act, it is not understood why this appeal has been admitted to hearing in the first instance, the reason given by my learned brother being that the stolen property had not been sufficiently identified. With respect, I fail to see how It could have been better identified, and the evidence of identification was not even disputed, the appellant not setting up any claim to any of the items, but asse'ting that they all emanated from his host John. • There is, however, one point raised in the appellantts petition of appeal which otherwise discloses no now ground of defence, and that is an allegation that he was not allowed by the magistrate to call as a witnesa the girl friend referred to in the evidence of his host. However, it is expressly recorded in the proceedings that the appellant stated, and 1 auote,

'I do not have a witness to call'. I have not the slightest hesitation in accepting this statement in the record as authentic and in rej ecting the appellant' s allegation as groundless as was his defence in court. • With regard to the sentence imposed, it is substantively thinimum prescribed by law, the value of the property concerned far exceeding the prescribed minimum of She. 100/-. The appeal is accordingly dismissed in its entirety. Delivered in Court at Dar es Balasm this 10th day of september 1971. (Sgd.) PHILIP BIRON. JUDGE.