19710910 TZCA Dar es Salaam2

IN THE HIGH COURT OP TANZANIA

AT DAR ES SALWI High Couzt Criminal Appeal No. 350 of 1971 Original Criminal Case No. 1711 of 1970 • of the District Court of Dar es Salaam District at Dares Salaam • before V. S. Lexnnge, Esquire, District Magistrate WINSTON CHAICJLiNGA ........................... APPELLAJT (Original Accused) versus THE REPUBLIC . . . . . * • . • • • • • • • •. . . . * . . . . . . . . . . * . . RESPONDENT (Original Prosecutor) Charge: Housebreaking with intent to commit a felony therein contrary to section 294 (1) of the Penal Code, Cap, 16, Vol. 1 of the Laws.

JUDGMENT BIRON J. * The appellant was convicted of housebreaking and he was sentenced to imprisorunent for two years and awarded the statutory twenty four strokes corporal pmisbmeut, the offence being a scheduled one under the Mininum Sentences Act, 1963. He is now appealing. Evidence was given by the complainant's watchman to the effect that one morning whilst the complainant was away at work he saw the appellant breaking open the door of a store of the complainant's house with an iron bar. He accosted the appellant, who stated that he was looking for employment and ran away. The wiine.ss pursued him and caught him after a chase of about a hundred yards, in the course of which he saw the appellant throw away the iron bar he was carrying. The evidence of the complainant 's watchman was confirmed in every material particular by that of the complainant's cook, who also joined in the chase. The police officer who arrested the appellant testified that after be had been apprehended and handed over to him he pointed out the spot in the bush where be had thrown away the iron bar, which the police officer retrieved and produced in court. The appellant elected to make an unsworn statement, which was to the effect that he went to the locus in quo In order to visit his brother, and to his surprise someone, apparently the watchman, iised a hue and cry, alleging that he was a thief, and he

was thereupon apprehended and subsequently arrested and oharged.• The evidence certainy eslablishes that the appellant was caught in the act of breaking into the 2. complaimnt's house as found by the magistrate. even so, the magistrate has made no finding on or even considered the aspect of intent, which is as essential an ingredient of the offence of housebreaking as the factum, as expressly laid in the charge sheet, that the appellant 'did break into . the house.' of 'Piechenda Athonlo with intent to coiumit a felony 'therein, to wit stealing'. The concluding part of the magistrate's judgment reads:- "The court after carefully examining the records it is quite believable that accused was breaking the house in question and 'I therefore find accused guilty as charged and conc t him 'forthwith. ft In view of the fact that the magistrate expressly referred to the charge, it would be charitable to assi.ime that he had the question of intent in mind, for, as noted, the intent to steal is expressly set out in the particulars of the charge. However, even if the magistrate did not consider such aspect, as I have repeatedly observed, a first appeal is by way of a rehearing, that is, that the first appellate tribunal can act on the evidence adduced before the convicting court irrespective of whether the magistrate omitted to direct himself on some aspect of, or even misdirected

himself on, such edence. On the evidence before the court, and taking into consideration the appellant's defence, I am perfectly satisfied that he broke into the complainantts house with the intent to steal therefrom, and accordingly uphold the coriction as found. With regard to the sentence, the offence, as noted, is a scheduled one. iven so, the appellant being a first offender, no property at all having been stolen, his age being given as eighteen years, and this his first and amateurish incursion into crime having proved so abortive, I consider that there are special circstances which empower the Court to impose a sentence less than the prescribed mininmm.. The appellant was convicted on the 12th of I1arch of this year. He has therefore already served six months of his sentence, which, aflowing for remission for good conduct, is equivalent to a sentence of imprisonment for nine months, which I consider is more than ample to meet the justice of the case. The appeal is accordingly allowed to the extent that the sentence imposed is set aside and there is substituted therefor such term of imprisonment as will result in the immediate discharge of the appellant. Delivered. in Court at Dar as Salaam this 10th day of September 1971. (Sgd.) PHILIP BIRON. JUDGE.