19760227 TZHC Arusha

- IN ?I-IE HIGi C()UiT OF MJJZANIL • AT .j1J5J

AITELLLTE JURISDICTION RIG-H COURT CRIMIJAL ATkI F.I O. 262 OF 1974 ORIGINAL CRII1L1 CASE NO. 262 OF 1972 OP T}E DISTIC1 COURT OF hOSTTI DISTRICT A-T ilUSHI BEFORE: Vv. NATHAN, Esq., Disirict Mgistrate NT.JSA SL.ID1.................................Ai.rELLL.NT (Original n.ccused) vcrsus THE RErUBLIC RESPONDENT • •. (Ori( ;inal PT0SCcutor).

JUDGIIENT JONATHAN, J. The appellant was convicted of buglary and steling, c/ss'. 294(1) and 265 of the Penal Code. ' It was the case for the Drosocution that the complainant husincssmn (P.W.l) on February 6th, 1973 locked his'room'anci was away over night. 'Upon returning on the next day he found that room having been bt'okon into and his shot- gun and six rounds of a:w:1un2.tion stolen. On Pffarch 2nd, 1973 two members of the Polico Force, P.'7.2 and r.V1.3, acting on tip-off took a hidi)_-ig positi ,n nor a bar., 'flü10 there they saw the appollant emerging and passing by the bar when they stopped him. He was carrying something wrapped in a piece of gunny bag. '.'The iircel transpired to contain a shot-gun and six rounds of ammunition. ' The apollant's explanation to them was that he had picked thoc things at Manyoma Street. ' The appellant in his evidence denied the offencos,. Explaining his posscsion of the shot-gun and bullets he said that he had on February lot, 1973 hired one Vitalis to clear the grounds of the house p±' one Douglas and that while Vitalis was doing the job that day he came across those things hidden in some grass. One Do.udi, a member of the Tanu Youth Loaguo passod by and the appellant seized the opportunity by as1iI1g him to report at the police staiion, which was nearby, that they had picko. the things. At the close of the day the police had not

cone, so they hid the things in some grass • A couple of days• later he went back for them and hc, was proceeding to the house of Vitalis to accompany him to tho, police station to haiad ever the things when P. 1,7.2 and I.W.3 stopped him. At first the appellant expressed a desire to call both Vitalis and Daudi a' dofence witnesses but ho later withdrew his 'application to have: -the latter sunoned. Vitalis in his evidence said tho;t the appellant hag on February 25th, 1973 hired him to clear the grounds of a house, but he denied over picking' thc thiigs. In ........... •. a- 7 -2- In one or, two respect the osoeution coed would appear a little unsatisfactory.. Tirstly, one cannot say on the evidence that the breaking must hmro.ijoon dhring the night, and the: appollohtshould. hove been convicted of housebreaking and not of burglory Secondly, the evidence of identification cf the shot-gim was superficial if not totally lacking. The cemplinant woe not skc-d tc say what :aake"' it was while h.:ieuld nit.reraomi.ior is serial number. The exhibit shot-gun was not in court as ret and so he. was not asked to identifr ,:it either • Neither the prosecution nor the court soon- to have appreciated the necessity there certainly was 01 saoing naot the exhibit shot-gun was clearly identified as being that of the complainant. It seems, however, that uaon tho exhibit gun being seized and

shown to the complainant at the police stoicn he clearly identified it to be his. He was in a position, I thith, to be sure if it was the rlovctnt eliot--gun. The weapon had boen tolon alon with sic: rounds of omnanition. The uxhiJit shot-gun with wasix bullets, two of which the complainant said were for a rifle while the remaining rounds were for the shot-gun. On such evidence I would accept the account. of the complainant that he identified the shot-gun that was seized from the appellant as being the stolen shot-gun, and it is not irrelevant to note that, there was no disputo in the lower court that it was. The story of the appellant that thoy had picked those e thins cannot be true. He has given the dote of such picking' as ]iebruary 1st, but it will to notod that the offences had yet to be coiemi -Gtoo as at that rlissng'ostion that he then sent Daudi to report is totally unconvincing;.. Tne police station, as admitted by him, was guite near, and if he had desired to report the finding to the police he would personally have made such report, ama at does not soon surprising that he would not hove Daudi called. His hiding of the things subsequently was itself inconsistent with a desire to hand whenever to the police. For such considerations together with the evidence of his own witness the defence, in my view, was rightly rojectod He was found in possession of the exhibits

about thrae weeks aftQr they were stolen. By their nature they do not change hands easily and as they wore all found intact it was reasonable to in±0r that the appellant was himself the thief. In the result, the. appeal is dismissed in its entirety', save that for thu conviction of burglary there is substituted one of housebreaking. (r, M. JONATHAN) JUDd3. Judguent delivered in Court at Arusha this 27th day of February, 1976. (r. N. JONATIJAN) PlIJ/MTPlJ. -- JUBCTE.