19720322 TZHC Dar es salaam

IN THE HIGH COURT OF TANZANIA AT DAB ES SALAAM Court Criminal Appeal No. 577 of 1971 Original rim1na1 Case No. 1125 of 1971 of the District Couxt 6f Dar es Salaam District at Dar es Salasm before G.A. Rwelengera,, Esq., Resident Nagistrate. SALUM SALUM APPELLANT verstis THE REPIThLIC .,..,.s...,......,.....,...........*....... RESPONDENT Burglary and stealing c/se 294(1) and 265 of the Penal Code. Entering and remaining in the harbour area without lawful business 0/se 274(1) and 294 of the East African Harbours Regulations., 1970. I ruDGMENP BIRON a. - The appellant was convicted of burglary and stealing and of Ibeing unlawfully in the harbour area, and he was sentenced to 1m - risonment respectively, for twelve months, six months and four iontbs, to run concurrently, and he was also awarded twelve strokes corpora1 punishment in addition to the sentence of imprisonment fo twelve months on the oot lotion for burglary, He is now apea1ing. Evideno was given by the complainant, a ship's officer, to the effect that e went on night duty at about 11p.m., olosig the door of his cabih behind him. At about 2.30 a.me he saw the appel]ant near te offIcers smoke-room, which adjoins his cabin.. Being uspioious of the appellant, he questioned him and the appellant told him that he was a watchman on the ship. The complainant did not believe him,1and as he was taking him to the supervisor to check on his story, thb appellant ran away but the complair ant caught him after a chase ank brought him before the watchman on du,y at the gangway. The waohnan confirmed the com]]ainant's suspicions that the appellatt had no right to be on the ship.. The police were summOned and the appellant was taken to the police station, The watchman on duty1 t the time, testified that he was on duty at the gangway and the &ppellant did not enter the ship by the gangway, for if he had Oohe so, he would not have permitted him to enter, as he had no right to be on the ship. The watchman also confirmed the eidence of he police officer who came on board the ship and apprehended the ppellant, that when the appellant was searched there were found on hIp four packets of Benson and Hedges cigarettes. Both those two wtnesses, the police officer and the watchman, stated that as the appellant was being searhed, he was seen to take out ,somethizg from his shirt pocket and attempt to throw it . p •.. .2 ? 2. away, but before he could do so, the police officer on opening his hand found therein'a 'can shilling note. The complainant had testi- fied that when he wint to his cabin be found it, to use his own expression, in Shambles, and missing therefrom were four packets of Benson and Uedges cigarettes, which he said, he had left on his bed and a ten shilling note had disappeared from a drawer. The complainant further stated that the packets of cigarettes bore special markings, as they were obtainable only by seamen, apparently being duty—free. The appellant in his defence, which he made in in an uneworn statement, stated that that night at 'Margots' which, I think, is a restaurant and night—club combined, he had met a 'certain In diant who accepted his offer to take him roiind the town to look for women, but his companion first of all took him to the ship, where he left him on the deck saying that he was going for a shower. Whilst waiting for his oompanion, some members of the crew passed, and after asking and obtaining a cigarette from one of them, he bought two packets from him. And when the Indian returned, he gave him another two packets. Por some reason, neither stated nor apparent, he,and. I quote him verbatim; "I remained seated there and then fell asleep", and that is where and how the complainant found him. The complainant called the watchman and subseq,uently the police were summoned, and he was taken to the police station. It is not irrelevant to note that the ship's watchman in his evidence stated, that he accompanied the appellant to the police station and on the way the appellant told him that he had gone on board the ship to look for food, Not surprisingly the appeflant's defence was rejected and he was convicted as charged.. The convictions are fully supported. and justified by the evidence and there is no substantive merit in this appeal, as the appellant does not raise any new ground of defence or of complaint in his petition of appeal. The only reason, or rather reasons, the appeal was admitted to hearing, as so stated by the learned Judge who admitted it, are, to q,uote him "(a) Re charge - Was the accused properly charged of burglary n so far as the breaking and entry and stealing allegedly took place in a ship?" and (b) that the sentence contravenes the provisions of the Minimum Sentences Act. To deal with the propriety of the conviction for burglary first, the learned Judge has apparently brerlooked the provisions of section 294 of the Penal Code, whereunder the appellant was charged on the fi'st count, which read3 11 294. Any person who l) breaks and enters any building, tent or vessel used as a human d.melling with intent to commit a felony tbere±n; or (2) having entered any building, tent or vesSel ued as a human dwelling with intent to commit a felony therein, or having committed felony in any such building, tent or vessel, breaks out thereof, •1 I 3 is g4lty of the felony termed 'hsebreadng' and is liable to imprisonment for seven rears. If the offence is oommtted in the night, it is termed tburglaryt and the offender is liable to imprisonment for ten years." A shIp is thus equatod with a dwelling house, and the conviotlon tor burglary was pFfectly proper. With regard to the sentence on the conviction for burg1ar, that is improper, Although the magistrate found special ciroum stances within the meaning of section 5(2) of the Minimum. Sentences Act, 1963 9 which incidentally, has since been repealed bxt we in force at the time of the convlotlon, empowering him to award a sentence less than the prescribed màiimurn of two years and twenty-four stiokes corporal punIshment, the court's discretion is limited, or rather, was lImited, to Imposing either tenstokes oopora1 punishment, or such term of imprisonment as would most he reutremens of the case. But the court had no power to award both imprisonment and corporal punishment. That part of the sentence, awarding the appellant ten strokes corporal punishment, is acoord-ingly set aside. To the extent indicated, that the sentence on the onviotion for burglarj is varied by the setting aside of the aard of corporal pwishment, this appeal is allowed and in all other reapects it is dismissed. Delivered. in Court at Dar es Salaam this 22nd day of róh, 1972.. (?I.LI? IRON) JUDGE