Maina, J.: These two appeals are consolidated. The two appellants, C Hamisi Ally and Mesco Lucas, who I shall refer to respectively as the first and second accused, were charged at the Tanga District Court of two counts: house breaking and stealing. The learned trial magistrate acquitted them of house breaking but he convicted them of stealing and sentenced each of the accused to three years imprisonment. The D first accused was, in addition, convicted of malicious damage to property and he was sentenced to six months imprisonment, to be served concurrently with the sentence for the second count.
The evidence adduced by the prosecution showed that the first accused was staying at E the house belonging to PW.1 Philip Kitenge. On 17.6.1980, PW.1 Philip Kitenge left the first accused at the house and there was a Radio which was Government property which PW 1 Kitenge was using in the course of his duties as a Ward education coordinator. In the evening when Kitenge returned to his house the Radio cassette was not there. The first accused too was missing. Kitenge found out that the rear door of his F house was broken. There was further evidence that on the morning of 17.6.80 - the day the Radio Cassette was stolen, PW3 Idi met the two appellants on a bicycle and on that bicycle there was a bundle wrapped in a sack. About two days later, on G 19.6.1980, PW4 Hassan met the second accused carrying a bundle wrapped in a sack and the witness saw the second accused putting gave a Radio Cassette to the second accused. Then the witness went away leaving the appellants together.
The appellants, in their memoranda of appeal have repeated the defence which they gave H at their trial. The evidence against them was wholly circumstantial and it was considered carefully by the learned trial Magistrate. There could be no doubt that the first accused disappeared from the complainant's house and that was on the morning of 17.6.1980 when the theft was committed. The fact that the first accused was seen riding a bicycle that morning and carrying a bundle which later was found to contain the stolen I Radio Cassette leaves no reasonable doubt that
bundle in a house which the witness knew had been abandoned for a long time. This A made PW4 Hassan suspicious. He interrogated the second accused who claimed that he saw a Radio Cassette. The second accused was arrested and finally PW1 Philip Kitenge identified the Radio Cassette as the one stolen from his house.
The first accused denied the charge and also denied that he ever travelled with the B second accused on a bicycle on the morning of 17.6.80. The second accused said that he received the radio - cassette from the first accused. He called a witness, DW3 Daudi who claimed that he saw the first and second accused on 17.6.1980 and that the first C accused doubt the first accused was the thief. There was absolutely no reason to disbelieve PW3 Idi who met the first accused riding that bicycle. As far as the second accused is concerned, apart from the evidence of PW.3 Idi, there is the evidence of PW4 Hassan who saw the second accused only two days after the theft, carrying the stolen Radio cassette in a sack. The evidence by DW3 Daudi was unbelievable. There D was no reason for the first accused to pick a radio cassette form the ground and hand it over to the second accused.
On the evidence on record, there could be no doubt that the two appellants were properly convicted of stealing the Radio cassette and since the stolen property belonged E to the Government, the sentence of three years imprisonment was the minimum under the law.
The learned district magistrate held that the first accused had intentionally damaged the rear door of the complainant to fake a breaking, and so he convicted the first accused of malicious damage to property. I would agree that since the first accused was resident of F that house, he stole the Radio Cassette without having to break in or out of the house. It is clear that he pushed the rear door with some force and caused damage to it so as to make it appear that someone else had broken the door and stolen the radio-cassette. But the point is whether there was any justification for the trial Court to substitute a G conviction for malicious damage to property when the charge was housebreaking. The powers of returning a conviction for an offence other than that charged are expressly laid down in section 181 of the Criminal Procedure Code. It certainly cannot be said that any of these section empowers a Court to substitute a conviction for malicious damage H for housebreaking. In R. v Anyalwile s/o Mwaikusa [1968] H.C.D. No.270 the accused was charged with house breaking but the Court convicted him of malicious
damage. In quashing the conviction, Georges, C.J. (as he then was) said:
There are no specific provisions empowering a Court to convict under section 326 (1) where a I charge has been laid under Section
294 (1). It cannot be said either that section 294 (1) creates an offence consisting of A several particulars, a combination of some only of which constitutes the offence created under Section 326 (1).
With respect, I agree that the Court cannot convict a person of malicious damage to B property when the charge is one of housebreaking because there are no specific provisions in the Criminal Procedure Code giving the Court powers to do that. I would therefore, for these reasons quash the conviction for malicious damage and the sentence of six months imprisonment imposed on the first accused is set aside. The appeals are, C save as indicated above, dismissed.
D Order accordingly.
E