mikidadi saidi mwichande vs republic 2008 tzhc 286 1 august 2008

IN T H E H IG H C O U R T OF T A N Z A N I A A T i Yl TWARA C R I M I N A L A P P E A L N O 6 O F 2006 O riginal Kilw a Mcisoko D/Court Crim inal Case No. 2/2005 Before S. G. Cleophas, -D M M I K I D A D I S A I D I M Y V I C H A N D E .................................. A P P E L L A N T VERSUS T H E R E P U B L I C .............................................................. R E S P O N D E N T 1/ 7/2008 & 1/ 8/2008 Rw eye mam u, J. Judgment In Kilwa District Court (DC) Cr. Case 2/2005 the appellant Mi k i d a d i Sai di M w i c h a n d e was faced with a charged on two counts, Burglary c/s 294(1) and stealing c/s 265 o f the Penal Code respectively. T he particulars had alleged that about 05.00 hours o f 21/12/2004, the appellant broke into the dwelling house o f I Iainisi hnbu, and therein stole the co m p la in a n t’s bicycle and various other items valued at shs. 128.000/. He was tried, convicted and sentenced to 5yrs and 2 yrs for the two counts, that was after the prosecution disclosed that the appellant w as a habitual offender. Dissatisfied he filed 9 grounds o f appeal and expressed his wish not to appear for hearing. The appeal w as contested by the republic/respondent. Briefly the prosecution case was that: Pvvl learned from another person that properties were stolen from his retail shop, that person had seen a trail o f rice in the bush, he m ade a follow up and there found a n u m b e r o f cooking utensils som e o f w hich had the nam e o f the c o m p l a i n a n t ’s wife. He went to his house to check and found som e things m issing including his bicycle. He reported to the Village E x ec u tiv e O fficer (VEO), who assigned the village civilian police ( rngambo) - Pw2 to follow up the matter. T h e ev id en ce o f the two w as similar. T h ey reported to the a p p e lla n t’s Ten Cell leader, and with him w ent to the appe lla nt's house se arched and arrested him. He admitted to have stolen the rice w hich he had hid den under the bed and so m e cloths, thereafter he took them to the bush where he hid the rest o f the items, ant! there they reco v e re d the c o m p la i n a n t’s bicycle. He received beating from villagers w ho were a ro u n c before he w as returned the VEO’s office. T h e re he claim ed to have com m itted the offence with one Hedo, they w ent to his house but he had escaped. Pw2 d e p o s e d further that he w^as with two other rngambo in the exercise and after h and ing over the appellant and recovered articles to the V E O , their w ork was done. T hey left the officer to p r o c e e d with usual legal processes. He tendered as exhibit the bicycle P I , c o o k in g utensils P2, a tin oI'rice P3, and assortment o f clothes P4. T he c o m p l a i n a n t ’s w ile Pw3 testified that she w as sleeping at the material day, that a th ie f stole a n u m b e r o f articles from her and another neighbor, that after the th ie f was arrested she w ent to the V EO office and identified her properties Som e o f the stolen and recovered utensils had her nam e inscribed on them. She added that the appellant w as a k now n habitual th ie f in the village w ho had stolen from a n u m b e r o f other people before. The appellant in his M A generally protested his innocence; submitted that; he w as not identified at the scene o f crime; that there was no evid en ce o f break; that he was not found in possession o f the stolen property and therefore that the case against him was not proved. Suppo rtin g conviction Mr. H yera state attorney for the r esp o n d e n t submitted that; the appellant was arrested im m edia tely after com m ission o f the offence; he led the search group to discovery o f stolen property; The appellant was arrested im m ed ia tely after the event; he w as the one w ho led the search party in the bush w here the stolen properties including a bicycle were found, and therefore that the evidence was very clear that he c o m m itted the offence. T h e re are tw o key issues for decision by this court; one. whether there w as p r o o f that the house, o f the c o m p la in a n t was broken into and at night; and two, w hether there was p r o o f that the appellant w as found in possession o f stolen properties identified to belong to com plainant. I will exam ine p r o o f in relation to the Is1 count first. To sustain conviction for burglary, the following ingredients n eeded to be proved: One, that the appellants broke and entered the c o m p l a i n a n t ’s house with intent to c o m m it a felony namely stealing; two, that they broke into the building on the stated date i.e 2 1 /1 2 /2 0 0 4 , three, that the offence was c o m m itted at night. It is clear from the sum m arized facts above and as rightlv although inarticulately submitted by the appellant that key ingredients w ere not proved on the required standard in the DC'. There was no e v id e n c e o f break in adduc ed by the co m p la in a n t or his wife. In fact, there was no evidence that the village officials to w h o m the crim e w a s reported visited the scene to verify the break in. Burglary c o n n o te s an entry which is forceful - a break, clearly w anting in this case was p r o o f evidence o f such forceful entry. In short co nviction on the 1st count was m ade by the DC m the absence o f e v id e n c e o f burglary. 1 quash that conviction. As regards the stealing, alter reevaluating the evidence I am satisfied that the follow ing facts were proved beyond doubt; that the appellant w as found with stolen properties tendered as exhibits; that he w as so found after a short period-in fact within hours o f their being stolen; that the said properties were properly identified as belonging to the com plainan t and his wife; and the appellant had/gave no reasonable explanation o f his possession. On those proved facts, the appellant was properly convicted o f stealing under the doctrine o f recent possession. A doctrine explained in a n u m b e r o f cases, see a m o n g others D P P V. J o a c h i m K o m b a 1984 T L R 213 w here it was held that: I f a pe rso n is f o u n d in possession o f recently stolen p ro p e rly a n d gives no explanation depending on the circum stances o f the case , the court m ay legitimately infer that he is a t h ie f or breaker or guilty receiver " His appeal on this count has no merit, 1 dismiss it. The sentence passed was not excessive, 1 leave it undisturbed. To conclude, the appeal against the 1st count is sustained, and the subsequent conviction and sentence o f 5 vrs quashed. Appeal against 2 nd count is dismissed. As a result the appellant will serve a sentence o f 2 yrs only. It is so ordered. .