19790105 TZHC Arusha

' IN THE HIGH COURT OF TAN LNIA AT ARUSHA APPELLATE JURISOICTIdN • HIGH COURT CRIMINAL APPEAL NO0 37 OF 1975 ORIGINAL CRIMINAL CASE NO0 131 OF 1974 OF THE DISTRICT COURT OF PARE DISTRICT AT SAME. Before S.N. Fundikira, Esq. ------District Magistrate KIIIAMA ISRAEL MOSES ---------------------- APPELLANT (Original Accused) versus THE RPUL!C ---------------------------- REPONENT (Original Prosecutor) 3 U D G E M EN T AVAS, J. The accused was charged with and convicted of burglary and stealing c/ss 294 and 265 of the Penal Code and sentenced to 3 and 2 years imprisonment concurrent sentences. He is appealing against the conviction and the sentences. There was in this case undisputed evidence to the effect that on the night of 23,10.73 a house of one, Ali Shabani, (PW 1), in which 50 bags of cement belonging to the Government was stored was broken into and the cement stolen. The burglary and theft was reported to the police and. after investigations the appellantwas arrested and charged with the off ences of burglary and stealing. In admitting the appeal to hearing Nyalali ZOJ (as he then was) minütted: j "Admit appeal for hearinc for considerEtion whether PW 2 was that reliable since he appears to have known that the house which is said to have been broken into belonged to PW 1". In support of the conviction the learned state attorney arqued that the trial magistrate found the witness, Ramadhani HaSSan, (PW 2), to be a øredible witness. It was also argUed that Ramadhani's evidence was Supported by the evidence of Esta Abraham, (Pw 3). With respect to the learned state attorney I tend to agree that there was more than ample evidence pointing to the guilt Of the appellant. The evidence of Ramadhani, (Pw 2), was to the effect that the accused hired his motor-vehicle to carry 50 bags of cement from Kwakoa to Usangi. According to his testimony the bags of cement were loaded from the house of Ali Shabani, (Pw 1), at night0 The door to the house had apparently beeh forced open, the appellant having told the owner of the motor-vehicle that the key to the lock, of the door had been lostL This was on 23.10.73. The evidence of ESta,• (Pw 3), is to the effect that bri 24.10.73 the accused sold to her six bags of cement at shs, 17/- per bag and was issued with a receipt for shs. 102/-. In her testimony the witness testified that in March 1974 the accused approached her and told her that if anyone asked her whether she had bought cementtfrom him she should deny havinci done so0 Apparently at'this time the police was busy investigating about the disappearance of cement from Ali's huuse0 lf the evidence of Ramadhani, (P 2), the owner of the motor-vehicle was the only evidence against the appellant this Court could have found that Ramadhani'S story was not all that reliable as he was a person who had his own interest to serve. He had agreed to transport the cement under very suspicions circumstances. 0 ./2 -2- But as rightly submitted by the learned state attorney the evidence of Esta, (PW 3), to the effect that the appellant later approached her and asked her to deny buying cement from him supported the prosecution case that the cement the accused sold to Esta could not have been lawfully obtained0 This evidence added to the evidence of Ramadhani that the 50 bags of cement he loaded in his motor-vehicle were from Au's house which had been broken into left no doubt as to accused's guilty0 Need not to mention the evidence that the appellant sold the bags of cement to Esta hardly a day after bags of cement were stolen from the house of Au, (PW 1) Appellant's defence before the trial magistrate that he never took bags of cement from Au's house was found to be not credible. I see 'no reason to differ with the learned maqistrate's finding, bsed as it was, on the credibility of the witnesses0 The sentence of 3 years imprisonment in respect of the charge of burglary is the mandatory minimum undr the Minimum Sentences Act, 1972. In the event I agree with the Republic sum1ssion that this appeal should bdismissed in its entirety and I so order0 - N0S0 MLZ. AS, A1 USHA J U D 'G E'\ 5/1./79 ' Appellant - Absent and unrepresented0 Meriflyo for the Respondent/Republic NSM/GKK