19791212 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA. AT DARES SALA.AM APPELLATE JURISDICTION HIGH COURT CRfl'1INA1 APPFAL NO. 75 OP 1979 ORIGINAL CRThIINAL CASE NO, 474 OF 1978 OP THE DISTRICT COURT OF MOROGORO DISTRICT AT NOROGORO Before J.H. Nyamboga, Esq., District Magistrate, ONARI SWAIBIJ ..... .,............. .........APPBLLANT versus THE REPUBLIC ........,...................RESPONDENT CHARGE: 1st Count: Burglary c/s 294 (1) of the Penal Code Cap.16 of the Revised Laws. 2nd Count: Stealing C/S 265 of the Penal Code Cap.16 of the Revised Laws, BIRON, J. - The appellant was convicted of burglary and atealing and he was sentenced to imprisonment respectively, for three years and six months, the sentences to run concurrently with each other. He is now appealing. The evidence is somewhat confusing as the complainant was not quite consistent in her evidence. It is apparent from the proceedings that the complainant is a pro- stitute and the appellant was one of her clients, though.according to him, at the material time he enjoyed the monopoly of her favours. On the night of the 7th May 1978, the appellant went to the complainant's room and found that she was entertaining andther man. The complainant testi- fied that on the 6th May she had gone to a bar and had shut and locked her door before leaving. When she returned on the following morning she discovered that her bed and mattress were outside her room, and on entering she found that there was missing several items including a basket in which she kept her wristlet watch valued at 100/-. She went on to say, and I am afraid it is necessary to quote her verbatim:- tI reported to Morogoro Police Station 1 I suspected the accused. Accused was my former concubine. He had assaulted me and matters were before the Morogoro Primary Court. The accused had come before to me on 6/5/78 to ask for pardon. Accused is abiding in a nearby house. On 6/5/78 accused threatened that he would teach me a lesson so I suspected the accused. I was given a Police Officer to go and search the house of the accused. At this search I identified my clothes. •• ••• Y. —2-. These included a bedsheet,.a pair of khangas, a pillow and some other items, - In cross—examination by the appellant she admitted that the appellant had been acquitted by the Primary Court on the charge of assaulting her, for lack of evidence. The appellant's version of the incident was that when he went to visit the complainant on the material night, he Imocked at her door and she invited him in. On entering he found another man in the room who apologised for having trespassed on his preserve. The two men then started fighting. Nèihboucollected and they were separated and the complainant herself ran away as did her visitor. He accordingly slept on the complainant's bed by himself. In the morning the complainant' s landlord advised him to take away the comp1ainants portable items of property for safe custody in order to prevent them being stolen • On the following day he was arrested and charged with having stolen her property. Amongst the people who collected and separated the two men, was the complainant's landlord Salum Kisaka whom the appellant called as a witness. He testified that on the night in question he found the complainant fighting with a young man outside the complainant's room. After he and some neighbours who had collected separated them, the young man ran away as did the complainant, The appellant then entered her room and took out her belongings wanting to set them on fire, The witness dissuaded him and the appellant took away some of 'the easily portable articles' and made off with them. The appellant returned later in the night and he the witness, requested the appellant 'to guard the remaining artjcles'. For completion of the record, it should be added that the appellant returned to the house on the following day and requested the witness to evict the complainant, and he complied with the appellant's request. Thirglary is the breaking into a dwelling house with intent to commit a felony therein, The felony set out in the charge sheet was theft. However for some unaccountable reason the magistrate in his judgment stated:- I have carefully examined the evidence before me and found that accused obtained consent of getting PW1 open by threats. The first aim of accused getting in was to chase any man from their in and rape PW1. After chasing the other man accused could not get PW1 so he decided to appropriate her properties. Accused did not return the properties till he was charged.. A wrist watch one of the stollen properties was not recovered. I find that even if it was true that accused had given PWI presents which she still holds, the presents so offered have chiged possession and are now owned by FY11 and so .13 -3- • accused had no claim of right. Boththe intentions of accused prove that he had broken and entered the room of PW1 with the aim of committing a felony of rape and finally • stealing which he committed. I find that both offences have been proved against the accused. As remarked by Sisya, j # in admitting the appeal to hearing, there is no evidence of any breaking in S. To which I would add, neither is there any evidence of any intent to commit a felony, either that of theft or of rape. The conviction for burglary, which is not supported by the Republic, is accordingly quashed and the sentence imposed thereon is set aside, With regard to the conviction for theft, the evidence does support the finding of the magistrate that the appellant retook some items of property which he had given the complainant as presents before they quarrelled, and which taking constitutes stealing. in any event, the sentence of imprisonment for six months imposed on the appellant for the offence of theft, will have been served by now. Unless the appellant is otherwise lawfully detained in custody, he is to be released forthwith. The order for ompensation in the sum of shs. 100/— is set aside, as I do not believe the complainant that she kept her wristlet watch in a basket which, she said, was missing. Delivered in Court in Dar es Salaani this twelfth day of December 1979. (PHILIP BIRON) JUDGE