NA TZCA Dar es Salaam3

IH THE HIGH COURT OF Tll.NZ ANIA AT DAR ES SALA.AM APPELLATE JURISDICTION . _ CRIMINAL APEEAL NO. 70 OF 1974 ORIGINAL CRIMINAL CASE HO.l 718 OF 1973 OF THE DISTRICT OF DAR ES SALA/IJ\1 DISTRICT AT DAR ES SALAllM. Gv~,-iso Before: D.• J .. ~ - - D •. Magistrate.,. CHARGE: Burglary and Stealing els 294 (1) & 265 of the Penal Code. SAIDI S IMBA •••••••••••••••••••••• APPELLANT vs: THE REPUBLIC ••••••••••••••••••• RESPONDENT JUIGMENT BR.AMBIB, J. These are appe&ls against conviction and sentence in each of two counts of burglary ·and stealing. The sentence imposed was three years end twelve months respectively. Thecqomplainant allegeil. that her house w8J3 broken into on the.4th . August, 1973, -and certain items j_ncluding. her. sui tease were stolen. When going out she had locked her door and hidden the key.. She did not~ find the key on her return. The followi:ng ~·~ning 0he saw the appellant by he:r house and he showed her two photographs_ of herself;these had,...."been. 1n her suitcase. He told her that he w8J3 a C.LD .. man and he had her .· clothes which his friend had stolen. He refused to give the name of the friend but handed over to her the photographs _an.a. the keys for her door. Some days after the appellant came furtively to her house and she got a message_ to the police who came and arrested_ him~ . When his house .was searched..some of the stolen items were found including the nege.ti ves of ... the complainant I s. photograph. The sui tease was fo,und a:t the back of the house in the yard • . The complainant's sister, P.1.:'.3, supported her-.813 to the appellant's coming totheir house showing the photographs and claiming-to know--where the stolen clothes were. The last time he came , he atD4' her to 'buy cigarettes and it was then that she had a message sent to the police. The-appellant's cas.e _w.a.B that the complainant w8J3 111s lov~r and she had gone to his house twice early in August,_ 1973. On the 6th_.Auguet, 1973, she told him that her property had been stolen and he promised to ·'a>uy . her some c.lothes •. -He went to Mahenge and did not return until the 15th .August, 1973. He vi.sited her at her bouse.:~d she .. told him that she .had reported the theft to the.police and as he had-ignored her she would have nothing to do with him.. The clothes found in his house were his. - ·• ·• ..... ./2 ... - 2 - The. only evidence properly identifying any of the stolen goods was the photographs. Since they ca.me from the sui tease the appellant mu.st. be p:•esumed to have been in possession of the. sui tease. He gav~ no ex- . planation about the photographs or the keys •._ The facts that these were.not produced before the court.was raised in the petition of appeal but this .could not be fatal. The learned magistrate 12._elieved that the_._ appellc.r:tt showed t·heae things to the complainant and drGW the inference that it vras :~~ ~ broke the house. In assessing alL the evidence L. cannot say that he was wrong. The petition of appeal consists of denials only.of. the facts put forward by the prosecution-and raises nothing ~l:at the .. t!ial magistrate did not have to considert>I dismiss the appeal against. o:QRvt,.etion • . In passing sentence, the trial magistrate felt the.t he was bound to-g_:!.,_ve the minimum sentence. He di.d not consider the provisiona. of. sec.6. .. of. the Minimum Sentences Act. The-appellant was a first .Offender. No value waJ:J given of the goods :i::•rowd to hl'.VO-been stolen •. If this was. less than one hundred shillings the matter c.ould be outside the . ..: Act. I. would, the ref ore, remit the case for evidence of the value of .. the goDds stolen to be taken when the matter should be referred to this court for final determination. Delivered in court at Dar es Salaam the 5th day of 1974. i / C .B. BRAMBLE JUDGE.