19870301 TZHC Mtwara1

l IN 'l'}L. H::..Gn COUKT OF 'l'r.l~~Ai\JIA AT l'-!TWARA HIGE COURT CRIMINAL APPEAL N0.61 L2 1966 Original CriLlinal Case No.j3 of 1986 of ci1e District Court of songea Uistrict at ~ongea Before P.~.N. Tibenda. Esq., R: Magis~rate JOtfrJ YOHANA LUPEMBE ••••• ~,, ••••••• APPELLANT Versus , TH:.:: RSFUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O ,o O O O 0 RESFONDENT ,/ JUDGME:NT : NICODi:;LD l',A'fOJ\iANG.A, DhU.:)l }\(.Jj·,,_;:;·. and JOHN Y0liHl\JA L01-t:HBt· were jointly chars;ed with two counts under the 1'enc1l ;__oae: £irstly burglary with intent to commit an offence contra~y · to section 294( 1) and stealinQ• contra~y to sect:..un 265. Ekcept for Nicodemu Mato~anga the first accused ~uring trial, Daudi Kor,1ba and John Yohana Lupel!U)e we.re ccnvicted as ·chargeti 0nd each sentenced to three years impriuonment in ', respect of the first count and one year imprisonment in respect of the second count: :the sentences oidered to run concurrcn·'.:ly • John Yohana Lupembe, the third accu~ed during the trial has appealed against convictions and sentences. There is sufficient evidence to show that the house of Krodwick Ch:i-peta PW1 at Misufini Songea was burgled 3.!:)c_.t 11 0 30 p.r,1. on the night of 25th January, 1986; fro!':: ~;-_,.__ .sto.i;e / was stolen three bags of maize, maize flour,. two pL. . .s tic buckets, cooking pots and one piece of Kite~Je. There is further evidence establishing the fact that the Cvffi~:~i~ant Krodwid: Chipeta P\Nl and h_is wife and othc::: cc-ter,ctl'.).t::, assisted by two police officers they. had found on pa_trol duty dic1 follow the trail left b0hin,. ::iy ~ ·,Li..c. ..... ,-..1 maize flour that hac.. bec;1 leaking from their con to...:..-.· .. ·:.; ,;;;r....,,., their house to the house of the acquitted accused Ni,.. ,YJemu f'latonanga on 1k .. .. ;· .... ,, ,. • ,;- :., • • the very night of the burglary arid stealing~ Th, . .ce is f -!'."ther sufficie,1t evidence that Nicodemu Matorlanya ,,.men -.,sr:c..! to open the door of his house refused to dci that f~-r~ng thut the people. \·iho had wan~ed to get intci h1s house 'tJerc~ thie\res and n~t policemen cis they were al1egihg. He ~pened tne cioot to the police at ·6 a.1;.t1, '6f 26th January ♦ :1.986 and his i--oom was searc;1ed. · :There is undisputed evidence establ.ishing the fact that the 'l:.retii ieft behj.nd by Che dtQpp.ing maize and ma.ize flour haci· led to the room -of Nicoder,11.i Matonanga.. rnsj.de this room 1.r1~s founc.l three quarter bag of maize ideht.1:f!ed by the complainant Krodwick Chipeta Pwl ~Calise of the poor sta~e in which it had been as his but ~e gunny bag in which t:·1e maize h2d bee;1 stored was not his. His guhny ba~ had h~lc:s,. ·rhere is further undisputed eviden.ce that inside the pl t latrine of -that house wer~ found sac:l<.13 presumed tor.ave ueen those of Nnize b~cause there was a trei1 of maiz~ from the room of ::,Jicodemu hatonanga to the pit latrine. The h0use boy of iJicoder.1u 1;atonanga, ,Adam· Rashidi Pwl c0nfir:n,~'.1 tho. t .;or:n Yohana Lupembe had replaced the g1.1bny bag taking tiie· old one which had holes to ctr op in the p;i. t latrine. John Yohana Lupe1nbe the appellant disputed these facts. He how-:,--rer accepted that the gunny bat;J had been changed no~ l:Jy himself but by Adam Kashidi ( PW3) and he had rlot put ~he old sack in the latrin<=o Nicoc'iernu hatonanga. Adam Kashidi and the two convicted people ioe. Gaudi Koroba ana John Yohana Lupembe ithe appellant) are all in agreenierit that maize found inside th,~ house of 1-Jicode,:,u i,a-conanga nad been sent to that house by Daudi Komba and tlw npp(:llant the night. before. They ate further in agree:nent tt1c:.t Daudj_ Kornba and the appellant had asked for temporary storage of their maize which they had state~ chey had picked ,1ear the ~,1isufini c. c.r-1. Branch soon after ":.Ley had left the house of Nicodemu Natonanga. l'he ·four are further in agr02r,ic,:.t that the sending of the maize found ic,j_ci(~ the house wasroone about the time the offenee of bur-:1lc1ry and stealing he.d been c;ommitted at the hgusa of Krsc-..-.-ick Chipetao According ·co the eviden:Ce of Adam Rashidi P:J:'.:l he had cooked • ••. 3 - m~al ior ::icodemu f'latonanga and h1$ two colleagues after ::ne three; ilc:c.~ .'::'ci::urned from .a drinking splee at about 10erJ, ~-odlo on th·.~ ;:1:.~;ht Ci' 25'--h ·Ja.n1:1ary,~ _1986_. Taking intQ c.:i;:;:..__.,~..::--1tion the coo!..:i;-1~: ;:i_nd ~h~, ca.: tirig · time, the time stated by :rk complaL-1.c,nt p·,.· 1 as c:r.E:.: p·cssible tirne of burglar~, uDu tLcrt corrosponcl:,; ·.:::.-::.;_ t' c._, tirn,: tL.,t Dc:-..:Gi Komba ana Jonn iuh.:ma LU1JCLlbc >:~cl leit \:L<:~ :L.,,.:s,c; 0} 1::-1,.L.:- colleague hicode,.1u ,,,atonan9a. T;1e ·cr:Lal ri,agistrate very minc.-:.ely exoI1,i11,.:::c1 ti-:e .::,viu..:>nce for th8 proscc:;..tion , ::,:. deL::nceo tL- very admi:.:-,i.;:;ly analysed and evaluated the evidence. ice~· find no fault in his evaluation of evidence and his findings. I too accept that the app,.!llnnt , nd his colleagues were the peoplE? who had burgled thG: store of PWl and had stolen thf: i tens mentioc1cd in the charge sl'leeto The evidence of Adam Rashicii PW.: whicn was supported by the admission of the appellant, paudi Komba and Nicodemu ;:atonanga placed the sacks found in the pit latrine as the very one~ stolen from the ~to;e of PWl. Why dispose the sacks :thc:,t way?_ What a contradiction to the !.it:and tLat the .. rnaizc was there to be stored? Why get to all th.! tcuJ0le of carry:i.ng it over a distance to dump it iri a pit latrine'.? The inferences I draw got~ show that the appellctnt ctDu nis were colleagues .. l correctly convicted of the off~nces they stood charged withQ I would only add that the poli~~ ~ad not. beeri allowed into the house on the night in questiun not for the reason advanced by Nicodemu 1'iatonanga, time wcts, needi2d to dispose of the incriminating evidence. The hct pursuit by •PW1, his w~fe, his co-tenants and latter jo±ned oy the police. 0,1 patrol duty gave the culprits not much t:irneo 1 have no doubt th,cc•;_: the O.iJpellant and his colleague Daudi Komba haJ inside .as::;:~stance in disposing of the incri;. '..na~ing eviden,.:eo I furt:v.::r c::,ccept thE; trial magistrate infer.:;:1ce th'" : the conduc-i.: of the appellant and Daudi Komba was inconsistent ;,>Jith thr,·:.: of people under the influe: 1 ce of liquor. The evidence of pom;.)e drinking and for long hours by the appE~llant, oaudi ~·~Oiilbc.--. and Nicodemu Matonanga notwi thst~nd:i,.ng, tr.•~re ' exists n·::> evidcnc0 to show that the appellant and :,ct;_,io,;. 1,omba l had been in-capacitated t0 the extent of not being abl~ to t for:-m cri".x.,1al intent to commit th~ ·tw6· Offences they st00d cha::-:0ed Hith ciDci corn;:;_~ted. I find'' no ·meri·t in the ,:ip;,.>ce':l::. 1/ w:1ich is hereby dis1:.issed., The· irhposed I concurrent 5E.:utc:,,ces I 1-v.:=re i:.112 1:1ininu.m ur..J, . .1: t:.e dinirhurit ~entences Act, 1972. 'I 'I 1_'he app~als against b6th the corivictiohs and s~1tences are Ii hereby dismisseti. 1 r \_ \' •, ' ·,.--. <,,· . -- ~ ~ . .l--. - ~ I \ ~-·o::.:, -~,... ".,..___ , Xahy a .Ruba: a :/Judge I : 1 1. 3 .a 1 :i i :I ,i' I I! I Ii ·J'