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— 1 . IN THE HIGH COURT OF T.1'TZ/NI,. J PPILLTF JtJRTICTION 1 81973 I • HIGH COURT CRIMIN.AL APPEAL NO 275/' ORIGINAL CRIMINAL CASE NO 50/72 OF THE DISTRICT COURT OF T.NGA DISTRICT AT T.NGC Before B.D0Chipeta ESe . enior ReeiceTit M:ictrtc. oalo.1 a/o rlly. • • 0 4 vra Tho RO'LbliC , , -j U 1) 0 M E N T. J o nothan. ;. - • a.,. Thc a'.e llnt wns charged with burp1ry c/n YX (1) of the Ponni Code but he -" eovicto or ttoati.;C to co!1it the o:efcncc one eontcnee; to 3 years' impriaonent. rocor1ing to the comn1ainr.et one Dr. i -iou (P.4) he ai; ASK by noise iown etal.rn in tho anall hours of the material nIht. no he climbed uofl thc eteiro hu,hotrd a: if oorioone vze• runninr: anoy from hi - hoire. On £l':ching tourch he founc3 e gl - o hvvine bcon broken oI'f the doop to the sitting room. He called in the Police and P.Fj took photogrr-hn of finrer iri 're..i: -:...; Tounj on the i.rokc.n alcoa of g0nr . Tho clietfe:; iSter a.rrcFtee; on auopieiii [fl hi finger arints ecre taken, otor - nha of which :erc' rent to the Idontifie.tion Burey, Dr.r ca hmlanm together with the other ehota- raphs above rei erred to. According to the report submitted of the finger print expert, the imaresaiona foun' on the :iecoe of glese 'ero Identical to the eprolle t's finger prints. The appellant asked to have the expert called but after several acijourments, apparently occasioned by the failure &

of the expert to appear, the appellant withdrew his request saying he did not want him any more. His defence was, of course, that he did not commit the offence, that is to say, the finger impressions on the piece of glass were not his. However, I am satisfied that the trial magistrate was entitled to accept the report and to find that the impressions were the appellant's. I am also in agreement with the trial court that the facts did not constitute the offence charged as there had been no entering 0 Having regard to the time when the act was committed there was an irresistible conclusion that the appellant was attempting to break into the house in order to commit a felony and I have no reason to differ from the finding of the lower court that the appellant attempted to commit the offence of burglary. As regards sentence, it seems to have been brought to the notice of the court that there was a previous conviction by that court of a similar nature on which the appellant had been sentenced to 5 yearst imprisonment, but in passing sentence in the present case the magistrate felt that in view of the previous sentence which the appellant was still serving, to impose stiff sentence for the present offence vould have the effect of having the appellant too long in prison. He thus passed a sentence of 3 years? imprisonment. Clearly this violated the mandatory provisions of 5, of the minimum Sentence Act, 1972 under which It was incumbent upon the trial court to pass a sentence of not less than 5 years' imprisonment. .. p2/.