19731006 TZHC Dodoma

• IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISIDICTION HIGH COURT CRIMINAL APPEAL NO. 49/72 ORIGINAL CRIMINAL CASE NO. 313 OF 1972 . e OF THE DISTRICT COURT OF i4ANYONI AT MANYONI BeforeL.G. Rugimbana. o ....,,...,.. 0 ,, 0 ,.,.... • District Magistrate KIMOMBWE SIO KIBE ...... e 0 • • .. . Appellant (Original accused) Versus THE REPUBLIC .................... 0 00 0 000 •0 0 000 Respondent (Original Prosecutor) Charges: House breaking contrary to section 294(1) of the Penal Code Cap. 16 Vol.? of the laws. JUDGEMENT MAPIGANO AG. J. The accused Kimornbwe Kibe was convicted by the District coutt at Manyoni of Burglary and was sentenced to three years imprisonment which is the minimum sentence prescribed. He now appeals against both the conviction and the sentence. There was overwhelming evidence to establish the burglary which took place on 2nd November, 1972 at mid—night. A stranger broke into the house of the complainant, a woman. An kinvm was raised and two neighbours entered the house and saw the culprit. One of these Un- sucessfully tried to apprehend the culprit who bolted away and managed to escape even though he had first fallen down on the stairs giving the impression that he had injured his arem. The complainant as well as the two men who saw the accused stated that they observed the culprit properly by the help of the light from a pressure lamp which was inside the house. Two of them identified the accused as the culprit on an identification parade at the police station. The learned District magistrate believed these withesses. One of the ground;of appeal is that the identification parade was badly conducted because the complainant saw the accused before the parade. The other ground is that the District Magistrate didinot consider the defence that he, the accused, was in a journey from Tartga to Kigoma and that he injured his arm when he "jumped and missed's a train which was leaving Saranda station thereby landing in Kilimatinde hospital where he was picked up by police. Concerning the identification parade I ant satisfied that it was properly conducted. It is important to note in this regard that 4 the accused did not complain about the parade during the trial, 01-1 particular1y when the police officer who conducted the parade was giving evidence. There is therefore no truth whatever in the alleg- tion that there was any communication between the policeand the identifying witnesses as regards the identity of the culprit before the parade. Concerning the alibi, it is evident that the trial court carefully considered the possibility of the accused being in a journey and reached the conclusion that the alibi was a fabrication. Indeed i it is. As pointed out by the learned State Attorney the accused's own plea to the charge tends to contradict that allegation. The plea bo*kLtht1ethe accused broke his arm on account of an assault and not • • . .12 . . .72 on account of falling down. This inconsistency tends to show that the accused is basically a liar and a confused man. Like the court below I reject the alibi. There is no merit whatever in this appeal and I dismiss it entirely. Delivered in court at Dodoma this 6th day of October, 1973. DbP. MAPIGAJO AG. 3UDGE