19910716 TZHC Dar es Salaam

HIGH COURT CUii.UNJ1L A.r'.P.l!i.AL NG• 167 JF 1989 ORIGINAL CB.IM!NAL CitSE NO '16 OF 1909 CF THE DISTRICT c::::u:1.T OF llkIL~G:::no n,ISTTIICT AT ..lOTIOGORO BE~OR.E: EoJ. NYAM.ASl.NGi1RA RESIDEJ'.~T MJ,GISTR.L.TE K.ilRIMU BUSHIRI & iiNCTHER ••.•••••• .APl.,ELLANT (ORIGINAL ACCUSEµ) VEHSUS THE UNITED HEPUBLIC ••••••••••••.••• RBSPONDENT ( OIUGINAL P R ~ R ) JUDG.M£HT .. RUB.AM.A, J: THABIT RASHID, KIBERENGE SAMSON and K~Rll,1 BUSHIRI were convicted of burglary and stealing and each sentenced to c,;n~urrent te»ms of five yea~s imprisonment in respect of th8 burglary charge and one yea~ imprisoncent in respect of the stealing charge. THAnIT R~SHID and KARIM BUSHIRI have appealed to this cou~t against the_·,onvictions and ~mposed custodial sentences. .. There i:a sufficient evidence of the faot tho.t the house of Hellen llusimbi (.PW{) v1as on the. night of 6th Janu.;;.r.v-' 19.:..-9 burgled and seve:wal items stolen fromthe house. There is also suffjcient evidence tha~ eome of these stolen goods were recovered froi;:i vari(-US householde on ilhe day following the burglary i.e. 7th January, 19J9• The ~rosecution case against THA:i3!T Ill.SHIT is that he had tG.?geilhe, with ELIHUR!ThU Dli.WSCm, a co-accused the.t had. not been convicted, been .identified by .DAi'¼OS L' . . 'l.1ViI (2W2) as the peopli. that had br0ken-.i~-.o-~hei> roo;n and de..aanded money f'rom him (.PW2) and td:1:~;r people in the room. Also from Tli.ABIT RJi.SiIID was recovered on 7th ··-:J.nuary, 1991 recently silolGJl _ items which were positively identified by HEL:,..EN i.i.USHU.l3I (PWI) as h&viJ'.'g-· been amongst her stolen items. These were a siit case whi~h b0re a bag with her name on it, a bicycle NG.41769 wal:e .:i.u.bassador and a gown whose belt remained in :possession of PWI-. IIe. TiL:i.BIT Ri1.SIIID fu:iriJher led the police to the house of Elihuruilla ~awson whom he.had stated had .· SOfil6 ·of the st0len items. From this house se·.rer<il recently stolen items from the ho~se of PWI were recover~d. The proEecution evidence against KARIM BUSHit.I is that from his house were :,:·e-Jovered a day following the burglary some of the things that had been stolen from the burgled hou~e of FWI. These were one cover of an electric cooker one pie~e of shoe (having left onB behind which was produced ln court) and one recorded cass~tte bearing the nafile of PWI. Neither Thabit Rashid n6r Karim Bushir ta•e reasonable explanation as to how th~y had co □ e to be in possession of the recently stolen goods. - 2 Miss Mu.nisi, learned State ~ttorney aup~orted the conviction~ entered against the appellants in r,espect of the burglary and stealing oharges and the iuposed custodial sentences. She drew the attention of the court to the very strong .evid£mce against the appellants. I accept the submission as valid. I accept the evidence of PW2 that Thabit Rashid was one of the two burglars that hed entered the room he was·in on the material night and had demanded money ftom him and other-children in the room. I ~ccept the evidence of 2W2 that there was light in the room and tha"t1 Thabit Rashid and his collea8Ue who was surprisingly acquitted by .,,,, the trial oou!:l"t had been in the r\.·Olll of .Piv2 I for long enough time to facilitate correct identification of him the unfavourable surrcundings -·i.e. violence and theft notwithstanding. I further accept the evidGnce of identification of PWI that some of her ·stolen items_ had been recovered from the house of Thabi t Rashid,. The ~iscovery ··was made a day followh:g the burglary and the stealing ot the found items. Thabit frashid couli ~ive no reasonable explanation as. to how he· had come t0 possess these items~ The convi&tion of the appellant was proper. His appeal is acpordin3ly dismi,~ed. Likewise, Kari~ Bushir could offer no reasonable explanation ~s to how he' had come ·fo p6ssess so much of recently stolen property so recently stolen from_ PVlI. He could nqt have boaght ju.st a shoe! I see nJ illerit in this appeal which ,! is aoeordingly dismissed. I would in fact have ir:ipcsed· much stiffer .sentences for the committed off-ences - the appellants were eztreraely lucky to have got away with sttch light se·ntences. In totality, the appeals are &isuiiss-::d in their enti vety. \....}. '",:---, ~-(.,..}---~'-\_-4.. ~ ~ Y.AHYil. RUB-AM.il. JUDGE 16/7/91 Coram - RUD.ilMl ', J Mr. Komba, S.A. for liepublic Appellants absent Judgment delivered. I , ~Q,\)~ Yi:LHYA RU1}\\MA JUDGE DltR ES SALiUi.J.\1 16th July, 1991". /