19880111 TZHC Mtwara

IN THE HIGH COURT OF T}.NZL'JH11. AT MilU:11..A IIIGR COURT CRTI1Ilf.AL JI..PPEAL NO. 123 01:i' 1986 Original Criminal C2,se lfo.35 of 1985 of thG District Court of N2,chingwea nt Haching,.ma I3ofore A. Y. Amuli~ IJsq_. ~ District Magist1·ate ' RJ;,SIIIO I ISSA MtJ{OTA oooooOoooor:-00000 1..PPELIJuJTS .till.AS I IIEIIJ:JD I K!;,TC.1M.A. Versus TIIE REPUBLIC ooooocoooooOoc,0000000000 BESPO:NDENT JUDGMENT RASIT]J)I ISSA r.Tlu{CT.A and A11ASI BE.MEDI Kf,.TUl'B/i. were jointly charged with and convicted of Ilurgla.ry contrary to section 294(1)~ I of the Penal Code and stealing contrary to section 265 of the Penal Code. Each was sentenced to five years imprisonment in ·, respect of the burglary charge and six months imprisonment in respect of the stealing charge 9 tho sentences were ordered to run concurrently. Both Rashidi Issa Mako ta and Abadi Hcmedi Kc.1,tumba have appealed against the convictions and tho imposed sentences and their appeals have beeri consolida,ted with Rashidi Issa Mako ta· appearing as the first appclle.nt and Abasi Hemedi Katumba as the second appellant. The facts are largely not disputed. It is not disputed that the ' ' house of llamisi Ng'ombo was burgled on the night of 11th June, 1985 . and from therein stolen several items whose total value is 13,490/=. · It is further not in dispute that most of the stolen items were recovered on the next day!miles a.way from the scene of crime. The prosecution allege that t~10se items were found. in . possossion of the two apl)ello.nts. :Dach of the appellant disputes this fact by shifting ·b~uo to his colleague. While th0 first ' · appellant maintains that the recovered i terns had been found in possession of the seconarapt,ol.lant, the second appellant o·n tho - 2 - other hond maj_ntc,ini,1s that tho stolen i teos had l:ioen recovered from the first appellant .• Tho trial ma;:;istrate havine found th&.t tho recovered itens recently stolon property of iiamisi 1Tg'ombo and that they wore found in possession of both appellants, convicted the two appellants. Mr. Sangawe who hc:i,d o,ppea-red for t:.10 Republic declined to suppo::ct the oonviction>,maintaining tha,t the reoovm::-ed items dism·rnod by each of the appellc-mts as belonging to him had not been sufficiently identified as those stolen from ,the buxgled house of Hamisi Ng' ombo. On the evidence on reco:rd, I do not find merit in the submission by Mr. Sangaweo I find sufficent evidence exist on which to support the conviction8. T'nero is evidence of confession by tho appellants as given by 1-Iohamod l ..bdallal1 :Nmali PW2 and Kumbeje. Juma. PW3. Neither of the appellants had reverted to this evidence of confession either directly or indirectly in their evidence in chief or during cross-examination by themo I have no reason to doubt tho credibility of this evidenceo The evidence of confession gets support from thew.missions of the c::ppelhmts at several places that the arresting party had been led to places that some of the recovered property had been hidden 0£ already sold by the appellants thought in respect of this evidence, each of the appellant had shifted blame on the other one maintaining that it was hls co-accused who had led tho search party to those p1aces. I reject ea.ch of the appellant caso that tho recovered recently stolGn property had been found in possession of a co-accused and that it was a co-accused who had led the oearcl1 party to places from where were recovered some recently stolen propertyo The evidence is sufficiently clear that the two appellants had committed these offences together and had all the time belng in the thick of it together. I accordingly see no mcri t in the consolidated appeals a,gainst convictions which ' I hereby dismisso The imposed sentences are the minimum that coulcl have been imposed on each of the appellants. '11hc appeal against sentences are equally dismissed. In summary therefore tho appeals are dismissed in their entiretyo ~ ' .·.~~\--s~ Yahya Rubama Judge