19831104 TZHC Arusha2

'1

IN TEE HIGH COURT OF TANZANIA CRIMINAL APF.AL IO. 241 OF 1978 (Ori;inal Criminal Case No. 278 of 1978 From Distfict Court Moshi at Moshi) Before E.A. Kilej .....,.,.Resident Magis -trate SOSTENESINyjS ............ ..............A]?PELLANT 0 versus THEREPUBLIC. ....... 00000 ..........RLL23NDENT

JUDGMENT Be f o r e : R.B. MA GAL GA, J. The appella.nt.was convicted of housebreaking and stealing and he was sententced to concurrent sentences of 3 years and 6 mcnths imprisonment. His co-accused was acqu.tted The evidence adduced for the prosecution was that the appe11 ; nt was a wanted perso . n in his village and that massagesto that effect were sent to neghbourin villages. On 20th February 1978 the appellant and his co-accused were seer in a neighbouring village called Kilema imaroroni. Members of the Peopies Militia, including P.2. anft.PW.3, were alerted and they went to ai- rest h.e appellant. PW.2 and PW,3 testified that the appeUant took to bis heels when he saw them and they Ohased him till they lost sight of him. About 2Q mites later they saw him emerge from the complainant's house. with a gunny bag. They arrested him there vith the bag. They also observed that a padlock had been broken from the complainant's door. They took the appellant to i-imo police station with he gunny bag and -bbe clothes in it Later that day the complainant and his wife (Pv 5 and PtY.6) returned home from shwba and found their house broken intc veral c1btes stolen from therein, \, ) - 2 - They went to thçpolice 'station 'and .dentified their stolen clothes. The appellant's defence was that he had previously quarreled, with PW.4 and that 'when PW.4 saw him in her ,,vilge she called the

militia men to arrest him. They arrested and assaulted him before taking him. to a pzimary.couTt bell. Wble being taken to Himo police stet ion he sw a gunni bag with clothes in it and it was alleged that he had stolen the clothes. They gunni bag and its contents were later identified by the complainant and his wife to belong to them. They also claimed that the things had been stolen from their hose Although the 'bOken padlock to,which appellant refers was not produced in court at his trial the learned trial magistrate considered the effect of the omission, She however believed the evidence of tie complainant and his w i f e , and found it proved that their house was indeed broken into In view of the eivdence -that neither the complainant nor his wife knew the appellant, and, since the appellant never alleged, that.. the two were involved in a conspiracy against him I find no fault in the trial magistrate' s finding on the 'house breakinE and theft from the complainant's hoube. The 'appellant also contend that he could not have comthitte.d the offencessfter escaping from arrest. The learned trial magistrate . addressed' herself to this contention as well. She howeve' found that the period during which the appellant disapeared from the vie.w of the militia men was ehough for him to commit.' the offences. . , . . .3/ - 3 - He again I find no ground to differ with the trial court's finding. The appellent clearly believed that he had made good his escape from arrest. He did not know that the militia men were still lool: ng fo: him when they found hio c ring from the complainant's house. His convictions are thus well supported by the evidence in the record and his appeal is accordingly dismissed. (R.B. GAN

JUDGE 4/11/83 Appellant absent IVr,Mt. for theRepubiic. i I F I.