19701023 TZHC Mwanza3

t4-f A7f1t11iR IN TH2 HIC4I COUflT or TTZdTIi AT :::1TzJ Appellate Jurisdiction a:I:JIITLL LPLL NO. 199 OP 1970 (Ori.no.i Criuinal CasàPo.69G of 1969 of thedistrict curt of :dtuobr. before H. Lluccodan 3sq. 9 Posiclent itaistrnte). KIL0LI s/o L:KiflTDUKIZA ............i2LI;LNT (oiIGIiizji LOdUi:;D) versus TN: IJLtLIC . .. .. . . . . . . . . . CEAIIG:d:- }Ieuse-broabin c/s 294 of the CodeandT lonti ete3llfld. c/s 265 of the ie:'l Coc JUDGHIFT VAR rs sILI..Jli___ EL-IITLY, AC.J. The appellant was charGed with and convicted for housobrcokinC ° stediric; contray to sections 29 4(1) and 265 of the Penal Code x in two sopor to counts. lIe was only sentenced to a torn of two ye.rs and t,70nt1/- four strokes. The 1erned uc ~ istrate did not pass a sentence on the second count. As the ximhkas stolen iroperty h a d been recovered, noocr was undo for coupensation. ( The undisputed evidence established that police constobic Lzok:. (I?.:.i) left his house, at police lines, on the 17th Decaabcr 1959 .t about 7 o.n. to Co to work and he returned at about 5 pn • Le:orc he Icit the secured the doors and windows of his house. Upon arrival hone, IT fnd that the bek doar of his house had been forced open, and s ono itons which Wxhuxx he had kept on the table of his roon were uisSin(. The esti:iiatod at .20/-. LnonC the thinGs stolen were a book and a unCazinO, both bore the nones of Nzoka Lccordin; to Goorc;iona (p1:2) who lived at police lines as wall, at about 11 a.n. on the sc-ne dey he sa* the appellant forcinC op-on the wind ow in the house of the couplainctnt • Vthoi she saw this, she wont 0110 called police constable lizunGu (P..:.3), and both returned to the house of the couplainant. They then saw the appellant runninE away fron tho back - door of his house. He 'one chased and cauCht AccordinG to Gcorian, the- appellant was holdind articles under his am pit as he was soon runninC- rwy, but this part of her evidence was not suppOrted by the evidonco of const:blo idzUflU who ave chase to the ip011nt. He saw the crticles - torch, tiec socks, a book and a uaGc.zino at the door of the house. - The le:.irnod :laI.;istrate considered this part of the evidence, and accepted the evidorice of police constable HzunrCu in preference to that of G:eorionc. The appellant told the trial court that he was norely passin' by th polico lines when police coiistable iJlzunGu called bin, asked bin sone çuoction and then slppd hin. He said as he ran c:ioy ho was chased and cou:ht, He denied brc-okin; into .the house and stealin the itens produced in curt. He could not ivo any reason for LIzunG'u to beb±avc as he did since, acccrdin to hin, that was the first time he had net bin. The learned nnCistratc convicted the appellant as chared. The petition of appeal does not raise any Good Ground of op:.coi. As the learned JUd,e who adioitted this said it was acinitted hecanso learned na(istrate hc-d not passed sentence on the second count of t]acft. The appellant, if the evidence of the prosecution is accq?ted, 5ns cc-uht red handed and the trial oiivistrate was therefore srtitled to cyvict. There is anpie evidence to support the convictions. The r.ppoals r inst convictions have no nerit at all. As for the sentence, the learned naG;istratO, thou:h he found that the value of the property x stolen was only .20/- AM a first o±'fandcr, did not find 'ny special circunstcces in edstence. I cannot cay he woo wroaf; in this The sentence of two years, and twty-four strokes is . . .2 justified an tile ninieiun s e t by law. However, the loernod nois- trato uust hvo overlooked to inpose soritunee on the OcCond count of theft. I accordingly sentence the r.ppl1nt to si: nontlis on the count of theft. I order that this tern be servnd concurro:otly with that in respect of the first count. Otherwise tho Lpped to disr.aissed. Delivered in Court at Ivlwenza on 23rd October, 1970. J, 11 Y (z. ACTING- Jul C3.