Chelula v. R. Crim. App. 264-A-71; Kwikima Ag. J.

Chelula v. R. Crim. App. 264-A-71; Kwikima Ag. J.

          The appellant was convicted of store-breaking and stealing. He was seen leaving the store through an aperture through which he entered. The issue on appeal was whether or not entry through a permanent aperture constituted “breaking”.

            Held: (1) “The point about entry through the chimney which seems to have misled the learned trial magistrate is well-covered by this authority. [Petro Samson v. R. [1970] H. C. D. 35]. I would only point out that our Penal Code (Cap. 16) is fair in defining “breaking” the way it does because members of the public have a duty to themselves to build secure houses without leaving gaping apertures through which criminals may gain entry to render have to their property or even life and limb. I would for this reason let the laws remain as it is, without seeking to imitate the Indian Penal Code quoted by Mr. Justice Seaton. In my view, I am enforced by the opinion of the late Mr. Justice Humlyn in Ramadhani Bakari v. R. H. C. D. 90, 1970:- “The authorities appear to regard an aperture need-lessly left open as it were an implicit invitation to enter or at least as a situation not proclaiming a state of inviolability of the premises concerned …………..As was said ……… in Rex v. Springgs and Nancock 174 E. R.122, if a man chooses to leave an opening in the wall or roof of his house instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking.” (2) Appeal allowed and conviction for store –breaking quashed, conviction for simple theft substituted.