19770225 TZHC Mwanza

IN THE HIGH CoUT OF T]ZANIh AT IJANZA • PPELLITI JUISDICTI0N x-ICH COURT CRIIN1L P2' L TO, 551 OF 1974 ORIGINAL CRIMINAL CASE N0 285 OF 1972 01 THL, DISTRICT. COURT 0i. ouOo: . flITRICT AT BUKOBA BeforeACMRNAEsRESINT NAGI STATE PROTAZr ZI ARIA , ............ . 0 o • :oo'. b do (Original Accused) versus THEREPUBLIC....... •00 ' 00 0 0 00 0 0 0 0 0 0 0 00 0 00 0 0 00 0 00 0 •.RESPO1'JDENT (Original Pros cutor) CHARGE: 1st Count: BURGLARY c/s 294(1) of the Penal Code, Cap. 16 Vol.1, 2nd Count: STEALING c/s 265 of the Penal Code, Cop. 16. -OoO- JU DGMNT The apoellant PROTAZI s/o ZAKARIA was the second accused in the trial at Bukoba district Court0 He was charged jointly with three other accused persons with two offences of burglary and stealiny. The appellant and the 4th accused were convicted and sentenced to cencurrent terms of Fjv and One year imprisonaicot. The other two were acquitted. On appeal the 4th accused was set free by Nyalali Ag 0 J. (as he then was) in Criminal Appeal No 0 532/73. The disposal of the appeal of the present orpellant was delayed by his non-attendance because he had indicated that he wished to be present at the hearing. The hearieg of this appeal on 2/2/77 was only made possible when the appelloat by notice indicated that he no longer wished to be present. The evidence led in the trial Court by the prosecution indicated that during the night on 20th April 1972, the shop of one HARJI7Ah AVJI (P.W.5) along Migeyo Street in Bkoba township was broken into and a number of watches and pens were stolen. In this shop he sells eei watches and repairs old ones. It appears though not clearly brought out by the evidence that he also uses the same premises as his dwelling. I say not clear because in his evidence he gave the imdression that he slept at his brother's home. In any event when next aorning he discovered the breaking, he reported at the Police Station. Later after some days he was called back at the Police Stcitiun where he was shown a number of new •wrist watches which he identified t he the type which he sold in his shop. According to Police witnesses these watches were recovered at the home of the appellant when it was soaoched. These watches recovered from the ceiling of the house orsDnally used by th - el- lant's father. However the appellant agreed thathe had he1f placed the watches on the ceiling for safety because in any 'place they would have been sen by children who miht have b empted to play about with them, He Said that the wa.tches cr . en to their hme by the .1st accused (who waequited) when • ted him to spend the hi1t nt' his home. As to the wrist s foud with him and his wife he expidined that he got the1 • - t accused. . The ate rejected the appellant's explanation sayincj th e ws to shift the .urdeh to 'his i,thfurtu- flte guest the 1st accused. I tend to acjreo with this assessmrt, althOucvh I think the 1st accused should hove been asked to ex'.laia his possessi-.Jn cf the watch found in his coot. This aspect f th: I -2- against the 1st accused seems to have been ignored by the trial Magistrate 0 But whatever the criminal relati.iship between te a;pel- lant and the 1st accused, the appellant was r1irctly responsibi f..r the presence of the watches on the ceiling and that he hid theo there because he knew their history. As hi expianotion was rejected, the necessary inference 'was that he tookk part in the breaking which resulted in the stealing' of the watches0 For these reasonS his onviction.s on both counts were well deserved and in the result the appeal is dismisSd, and the sentence : of Five years in,c,c.unt 1 confirmed0 Deljferd in Court at Mwanz this 25TH y of FEBRUIRY, 1977. •, MWANZA. ' , MFALILA 25TH FEBRUARY, '1977 JUDGE..