19741118 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 118 OF 1974 ORIGINAL CRIMINAL CASE NO0 34 OF 1973 OF THE DISTRICT COURT OF MUFINDI DISTRICT AT MUFINDI Before M.M. Omari Esq..0600000..0........ .....,....District Magistrate MWANAHEWA NDAUSILA.0600006000600000600000000600000600000.Appellaflt (Original Accused) Versus THE REPUBLIC.................... 00 0 6 a 0 00 0 a 000 60• •0 a .Respondent 00 0 (Original Prosecutor) Charge: - Breaking into a building and committing a felony c/s 296 (1) of the Penal Code. J U D G M E N T MZ'IZAVASJO The appellant was charged with breaking into a building d committing 'a felony therein c/s 296(1) of the Penal Code. He was acquitted of this charge but was instead convicted of retaining stolen propery c/s 3.11 of the Penal Code and sentenced to five years imprisonment He is appealing against the conviction and sentence. In admitting the case to hearing Mapigeno Ag. J. minuted: "(1) "Does M O SA, apply. There is no evidence to support the finding that the pot was stolen during a breaking into a building with intent to commit a felony" (ri) "Sentence to be suspended forthwith." In his memorandum of appeal the accused insistø that the pot found in his possession was his property and not that of Faustina d/o Selutego (PWI) the complainant. There is clearly no substance' in this ground of appeal as the cooking pot (a "sufuria") was with sundry peculiarities identified by the owner as the one which had been missing from her house since 10/8/72 The cooking pot was found in appellants house hardly two weeks after it had been stolen. The only question that has to be looked into in this case is whether there was evidence that the cooking—pot was stolen after a breaking into the building in which it was kept. .'The learned state attorney concurred with this Court's observation that there was no evidence that the potwas stolen after a 'breaking into a building. With respect I agree that there was not the slightest evidence itivab in support of the prosecution case that the cooking pot was stolen after a breaking into a building c/s 196(1) of the Penal Code. The complainant (PW1) does not suggest in her evidence s Leave alone mention, that a building was broken into before her cooking- ot was stolen. That the learned district magistrate caine to the :onclusion that a building had been broken into before the pot was stolen is, to say the least, beyond my comprehension. This being he position the trial magistrate was clearly wrong in finding the appellant guilty of retaining stolen property c/s 311 of the Penal Code and sentencing him' under the Minimum Sentences Act. 00 00 a c,./2. 0 0•0 0 0 Retaining stolen property c/s 311 of the Penal Code is only punishable under the Minimum Sentences Act, 1972 if the evidence shows that the property retained was stolen in the course of the commission of one of the offences mentioned in items I to 6 (inclusive) of the First Schedule to the Minimum Sentences Act, 1972.. There was no evidence at all that the article retained by the appellant was stolen in the course of the commission of the offences shown under the Act0 The sentence is therefore illegal and is hereby set aside0 As the accused had up to the time his sentence was suspended by this Court (on 18/6/74) spent 7 months imprisonment it is my view that he has already suffered sufficient punishment 0 The accused is accordingly sentenced to such term of imprison- ment as would result in his immediate release from custody. He is to be set free forthwith unless he is otherwise lawfully held.. /Or DODOMA N.6. MNZY 18/11/74 JUDGE. Appellant absent and unrepresented. Mwiilike for the Rep/Resp.