19770531 TZHC Tabora

* IN THE HIGH- COURT OF TANZANIA, ? AT MWANZA APPELIJ TE JUT.ISDICPION (Tabora Registry) • CRININAL APPEAL NO. 28 OF 1977 (C/F. Misc. Cr. C'se No. 4 5 of 197 6 ) OTZIGINAL CRflINAL CASE NO. 120 OF 1975 OF THE DISmICTCOUrToF BARIADI DISTRICT AT BAPIADI Before: Z Rwejurta, Esq., District Magistrate. SALEHE 8/0 BULAi3UDO APPELLANT versüs THE REBLJBLIC .e..................... RESPONDENT CHARGE: 1st Ct: Burglary . c/s 294 (i) of the na1 Code. 2nd Ct: Stealing c/s 265 of the Penal Code. J = = U= =D= =G= =M= =E= =N= T = S.ISYA, J: The appellant an:J two othersappeared in the District Ceurt of Bariadi charged with Burglary and Stealing.. 4hese are offences un - 'er the Penal Coce. Both his co—accused were acquitted but the appellant was convicted of both offences and he was sentenced to concurrent terms of five years and twelve months imprc.nment, respecoively. He is now appealing to this court. • The established facts show that the appellant was at the material time staying inthe house of the father of the complainant. The said house was about five paces away from that of the complaInant, one TIMOTHEO SUIUNI (P.i). On 30/4/75 at about 8.00 a.m. the complainant secured the doors and windows of his house before he and his second wife, who did not testify at the trial1 went away. He went to Mwanza whereas his second wife went to her parent's home. Both of them spent the night away from their matrimonial home.. They, however, left behind the complainant's senior wife, one Pagi d/o Kamili (PW.5) S and their children. Plies were in the house of the complainant's father. Later in the evening while Pagi (Pw.5) and the children were having a meal the appellant, who, incidentally, did not join them at the meal told them not to go out of the hotise because he was going to take a bath. Nevertheless immediately after supper the children went to the complainant's house to sleepe They returned soon afterwards and gave Pagi some informatione The appellant was then nowhere to be seen. The door of the complainant's house was open and the pad lock which had been used to lock the house could not be found. Several articles which were in the complainant's house were no longer there. When the complainant returned on the following day he found the following articles missing from his house 1 that is ik pairs of trousers,' 8 long sleeved shirt, 9 shifts 1 7 bed sheets,. 1 record player,. 24 records, 5 pairs of shoes, 8 pairs of .khan.ga, I Kaunda Suit', 7 table clothes, 1 coat, 4 napkins, : cash Shs. 300/= and two leather boxes. A' report was made to the POlice and a search for the appellant who, naturallyj became suspectNoe 1 began.. The - search led to the stibequent discovery bf the following artidles, ioe one record player, three long sleeed shirts and three pairs of trousers (collectively marked Exh.. .i) 1 twelve records (3xh. P' 2), one pair of trousers' (Exh. P.34 five trousers (Exh. P.: 4)', one trousers ('Exh. P45) . , two shirts (Exh., p.6), six shifts', one trousers, one Kaunda sui't',r 3 pairs of khanga, one shirt, one bed' sheet, five table cloths, one towel, two napkins, five pairs of shoes (two pairs for female shoes and three pairs of "Gent's" shoes),. one tin' of lady Gay powder,,tabl'ets and a birth certificate in the name of one of the complainant's children (collectively Marked Exh. P.7).' All these articles were sufficiently identified by the complainant to be his.., The record player bears his full name.' One Mashini Bulabudo (PW.2)'who described himself as younger brother of the appellant testified to the effect- that on.26/5/75 he met the appellant in the house of their granri father at Kisesa Village.. The appellant told him that he had come from Lunguru,' Bariadi District,, where he was working at the ginneryo. The appellant had a woman with him with whom he claimed to have eloped.. He, appellant, also had a record player with the name of Timotheo Sumuni inscribed on it'.. He also had some articles in a bag originally used for packing fertili 7 ers.: Mashini identified the record player produced as Fxhibit in the case (Part of EXh..P.I),and part of Exh.-P.7,,to be the articles in question., 0 . . .. ,. .1 • One Pauline Masingija (PW.3) testified to the effect that on 29/5/75 the appellant arrived at his, i.e.. Pauline's, house for a visit. The appellant had some articles with him'. Since the appellant was accompanied by a woman Pauline surrendered his house to the appellant and his partner. After two days the Police came and recovered twelve records (Exh. P.2) from inside the said house and several articles (Exh. P7) from outside it. According to Pauline all these were brought by the appellant. Detcctive Constable Albert Gati (P!.4) who investigated the ease testified to the effect that on 31/5/75 he arrested the appellant at Mwakibuga village along the Dutwa/Bariadi road. He, appellant, was then wearing Exh. P.3 which the complainant identified to be his. Thereafter, the appellant led D/6 Albert to the house of one Mathias who appeared as the third accused at the trial. From there D/C Albert recovered Exhs. P4 and P.5 all of which were said by Mathias to have been brought there by the appellant. The appellant who was then present agreed and added that those articles of clothing were his. The same were, however, identified by the compOainant to be part of his stolen property. Exh. P. 6 was recovered from the person who appeared as second accused at the trial This person also Said that he got the two shirts from the appellant. During cross-examination of the complainant by the appellant the latter intiMated that it was the fo±-thers wife who handed over the artidles to him, i.e. appellant, with instructions to hide the same. Pagi (PW.5) who was the only wife of the complainant who remained at home at the material time denied telling the appellant to remove the stolen articles from the complainant's house because it was to be searched. The appellant elected not to say anything in his defence and he did not call any witnesses on his behalf. The learned trial magistrate came to the conclusion that since the appellant's own relatives had deposed that the recovered a rticles were brought to wherever they were subsequently recovered by the appellant and since the appellant's allegation that he was handed over the said articles by the complainant's wife was denied by Pagi (PTe.5) then the appellant must be the one who stole the articles. The learned magistrate was, also satisfied that in the circumstances the breaking into the complainant's house must have been the contrivance of the appellant. 0 0 * . 0 0 )_ t ;. In his petition of appeal the appellant repeats his allegation that the articles exhibited in the case were handed over to him by the complainant's wife. On my evaluation of the evidence I am satisfied that it was established that there had been a breaking at the house of the complainant on the mateHal night. Evidence to this effect was given by the complainant himself (pw.i), D/C Albert (PW.i) arid Pagi (Pw5). From what the appellant intimated at the trial and repeated by him in his petition of appeal it is clear that he does not deny that he handled the articles exhibited in the case. As aforesaid, however4 his contention was that 'he was handed over the same by the complainant's wife. This was denied by PW.5. The issue involved here is purely that of fact resting squarely on the question of credibility. The learned trial Magistrate who, I must point out, had the opportunity of seeing and hearing'PW..5 in the witness box chose to believe her. On my part I see no cause why he should be contradicted on this aspect of the case. That being so and in all the circumstances of the case there is an irresistible inference that the appellant stole , those articles which were recovered, as. well as those which were not recovered. Further, as the stolen articles were behjnd a closed doorthich was subsequently found open there is, to my mind, an irresistible inference that the b'eaking in this 'case was the contrivnce of the appellant. Suffice it to say, therefore, that the convictions on both counts trêsound in law and they are, accordingly, hereby upheld. As regards the sentence, the appellant got away with the 'minimum term of imprisonment •in, count one: The value of the stolen property 'was given by the complainant to be Shs. 9045/=. itcannot, therefore, be said that the sentence imposed in count one is excessive. In count two, if anything, the. sentence errs on the lenient side. I will,, however, leave it undisturbed. In the 'final result this appeal fails and it is hereby dismissed in its entirety. Delivered in Court at Tabora this 31st May, 1977. ,i.' . •;f Tabora H. E. D.. StSYA, 31st May, 1977 JUDGE.