19760806 TZHC Arusha

7e IN THE HIGH COURT 01' TANZANIJ T USHA APPELLITE. JURISDICTION HIGH COURT CRIIJINAL IP?EJ.L NO 38 QE.1976 ORIGINiL CRtflINiL CASE :1W. 226 OF 1975 • OF THE DISTRICT COURT OP KOROG7E DISRICT AT KOROGWE BEFORE: 7. R. MUTMA, Escj., Rsidont Magistratc TTThIr TTffATT • - UU.L,.0 i .L i1UJ..LALJ • . . . . I . • a . a •• a a a • a ••• a .. a a I. (Original Accused) • - • versus -THE REPUBLIC . • . . . a a a • a a RESPONDENT • . • • • • • . • . •a • (Oriina1 Rroccutor) -- J1JDGEENT - - - NY41ALI 3. The ppo1lant s ch'rL1 and convictoi in the District Court of Koro o District at Koro. -wc -7ith the offonco of House brcakim., c/$ 294 (1) of tnt. Pm1 Code in tic first count, an(i withI Theft c/ri 265 of thn s o Cod in the econLcount, and was sentenced to the statutory ic-gal niniraun cntonco of 3 - '.ycars imprisonment on -the first count an4 1. year imprisonment on the second count. Sont.nccs were diroctc-d to run concurren- tly. He is norj n emling ginst conviction - alid SOn.IJCnCO. Lie :frcts of b cc'sc recording c tn prosecution "rc that the ap 1lnt lived in a room next to the room of P.W.1. On the 17/4/75 at about .9.00. a.i., P.1.2 who was the wife of loft and padlocked P.W.l's. ron and wont away to the market appaent1y to buy. sme o household provisions. The appoilaht sa her o away. On her way back from the narkot, P.W.2 saW thO. a;pc1lait walking awey carrying a basket. On her arDivai -at. hno-- ho found the Dadlock on the door broken and a number., of properties; including a radio sot missing from P.W.lbs room. Ltor tmt ay appellant was soon by P.W.3 with r lx- gk t in jhic 1 -aei r'c1 io sot. In his dofcncc at the- trial apeollaiit dcniTd th-.. lrosocut±on case and put forth an alibi that aLth. time whc5n the offoncos vioro c.ilogod1y committed, pellnt was away in Lushoto. -• - Now, as -correctJy observed by the learned trial Resident Magistrate, no body ac ually - saw the appellant committing the offoncos charged.- The cas e. aainet th, aproliant do - cnds entirely on circu sntiai evidence. The most important -point in this case is whcth-o' the circumstances irresistibly point to the guilt of the 'appollaiit reid are inconsistent with his innoconco. The loarhod trial Resident Magistrate stated on this point:- "I aa satisfied however that the c ircuastanc os are such that thy point irresistibly to accused as the one who con- eiteod th-... offoncerj. For at about 9.00 a.m. on that day of 17/4/75 he was at the house whoro they lived, at aboub 10.00 rt.n. after the breakage he was soon disappearing and at about 11.00 -' - - - a.m. h- was seen with a radio wanting to sell it while .L1C die. noi have a radio at all. Then lie....... ../2 -2—.' Then ho •. c c.opl t oJ.y i:ap5;aro d :'.rid this without oven bidding faro—wbll to . .th.o corlplzllnnnt. or his wife - his close noxt cloo.r .neihbouro. This behaviour point out to acdusod as certainly having coneittod thc: offonc .. •I had thoht that tii. circUr3tanQQs accoptcd by. the . learned trial Resident IJ ietrtc only raised a strong suspicion ins te. 11ç,-L 2 1put. on furi 1i.r considorotion, I agree that' teob'crcuastancos, .lus others which I will nention, irresistibly point to the guilt of.the appellant. The triol I trto rojci 1 h21b1 irdo by the appellant as being: a lie and was i:prosoed by the dOnoanour of the prcsccutioa v.itiissos I caataot say that the trial Magistrati: erred in so 'doing. Now as to the circ'xstancos of the, .cpsc. In addition to those ontianed by. the :tri'al Magistrate, there is the fact fro:. the evidence that : : appellant now that P. 17.2 woult bo at t1i' farkot fb tino, and, that P.7.2 called back at appellant to stop.'aftcr sho dso bd' the breJ.:age nT theftbu apeollant did not stop. Why otild apcilant not stop if ho was innocent and was boing cajJcd by 11±5 next doir neighbour? Purthornorc, th r'io s'ct 'nich h c - rrying 'as of the sone ako os the one lcii . short tiic before in P.W.1' s roon. Under these circu,astancc,....I aa of the view that appcllnt was rightly convicted on both counts. Sinco the offoctivo sentence of 3 years jail is the law, the oal is hereby dia'issoa its,, ont.i'oy. (F. i,. 3L.LI) JUDG. . . Juc"go nt dc.ljvereC this 'r C' of 6bn Jiugust 1976 bt Tanga in th.. pres.elco of Mr. Mwalc, State kltorncy for tho Rc.public. ( L.- AILtiLI) FLN/JVITPN. '• .. ': JIJDG-E..