Ally Iddi vs Republic (High Court Criminal Appeal No. 36 of 1989) [1990] TZHC 481 (21 November 1990)

. . ,' \ IN THE HIGH.COURT OF TANZANIA ,l ·· AT -hRUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APP.EAL NO •. 36 OF 1989 · (·or.tginal Criminal Case No. 210 of 1988 of the : .Di.s•i::rict Court of Hanang District at Babati - BEFORE:. Po E. P.: MLAY, Esq., District Magistrate) .... ·--:-·---+;- ..... ___ : . ALLY IDOI o•o•ooooo••········••'o••······· APl?ELLANT 'rHE REPUBLIC '·. . . . . . . (Original Accu_sed) versus ••••••••••••••••••••••••••••RESPONDENT (Original Prosecutor) .............................. --..---------------------- JUDGMENT ••• • f !2!-.£5l. '.i!... Try.G_._app.ellant Ally Iddi was prosefμted in the District Court of J3':1bati f()r burglary contrary to secti-on 294 (1) of the Penal Code and theft contrary to section 265 of the Penal Code. He _was four.J guilty rid ·convicted as charged.· On the burglu.i:-y s:mnt he _was sent'enced to the sta,utory minimum of five year~ impris,oent. because the· total ,value of property which was stoh!n as-· a· result n;., _the burgl•ry well xceeded shillings 5 ,000/=. ,On th. t~~ft C?Unt he was sentenced to 'three years imprisonment. J;t was nrdered that thE:! sentences sh0uld run concurr1c:nty •. :-.He felt dissatisfied by the convictions and sentcncs and ,f,iled the appeal to this court •. I :.:. One Benjamin • •'. ' ,; .... i •• School 111' Bsl:>.ati, . .. :: !': near the schoolo Ilanda - P.w.1 - a teacher a; Singe Secondary had a rnnm in which he lived in a house at or on 11/8/88 h travelled to Dareda Hospital to se,~ n sic;k nhative and spent a night thereo While he was -c away his .t:p?_m w.~~ burgled at arr,und mid-night and. a. variety of housC!holc_1 · _goods ·which· included a ma tress, blanket, bedsheets, a . piilo~;, /1 ~~)tio :ind,.a .radio cassette were stolen. Luckily, a fellow tc_acher whn :slept in a neighbouring rnom went out and saw the door to the r0om of P. W. l was open. This teacher - Po W • 2 - Hosea Ndui - awakened his younger Prather - Daniel Nduka - / P.W.3 - and other teachers and students. Alli these £ollowed foot murks which led away from the school, using a torchlight. They saw •••••• ~./2

... 2 They sn.w ·ewe pe'ople who were carrying things o Those two people al3o suw the torchlight and started tn flee, nne taking a right - hand direction and the other a left-hand directiono The search pury divided itslf, one group chasing the man who took the right-hv.nd direction apd,, the other group chased the other man. The one who took the let"t hand side direction dropped down the . .- thtngs he was carrying and· eventually tripped and fell downo He was nrres-i:eo.. This happened to be the appellant. The things he had dropped down were· collectedo These were a radio cassette and a bu~· containing an assor-tmen'f··of things. The radio, the bag end the things which:. were ,:in -~~:.hag··were later identified by P.W_.1_§ bm.:bf.th.etolen:'iiroperty. .. \ Two 'other peopie wer ai::~~~ted on suspicion that they were .: ... :,·: . s ·•. ·. : _1 r. ; : ··•! . · .. with _the appellant. ,1'hEnc 1 -wer¢:--prosecllted al6ng.-wH:h him but, . . ,.. . . in _ !v end, they were acquitted. The! evidence in tj'le case was straightforward. The appellant ,:. ' . was seen with the stolen things c::,nly minutes after the burglary. He wa:::; pursued by both neighbours of- the cbmplainant and villagers who hec.rli ... the hue cl;hd cry and joined in the chase,.. There wae the .· ,; ... evidence .. of"···PoWo2 and PoWo3 that the·'appilaht dropped down the things he was cc:.r.rying and subsequently fell in 21 ditch in a pigon p~us shamba where. he was apprehended. His explanation that he was arrested while going to his sister's.house in the neighbourhood of his own and that he had . . . :·, .. decid':d to .. ryn into a pigeon peas shamba out ·of fear that the angry mob which was after him ~ould beat:him for·no reason at ~11, d_id not impress t,he trial agistrate. He ·rejected it and acc<=pted the P1t0Secution ver:Sion ,Which was cogent. I see no valid eas.on to t:ault the-·trial magistrate. ,. The appellant hs complained· in his petition of appeal that th1J. trial magistrate shouid:··not have accepted the evidence of the oplainant -·P·oWol• dut really PoW.l meely identified thE;! recovered· goods. as ·his.stolen ,roperty. He did not say tl")at he personally knew the burglar and thief. Nor dti I •••••••• /3

\ 3 Wl' ; r!:; ; 1-', Nor do I agree that the trial magistrate erred in relying on the evidence of complainant's neighbour teacher and his brothero Thre is no validity in the claim that they had their own interests to serve. They had not been suspected to be the possible perpetrators of the offence~ and even the appellant himself did not suggest so at the trial. There is no merit at all in this appeal which is dismissed fn its entirety. The sentence on the second count which need 1 confirmation, is hereby confirmed. At Arusha: 21/11/90 Mrs. Lyimo, State httoiney. JAH/MJK • . ..__ (Jo Ao Mroso) JUD~E