19760331 TZHC Tabora

sr

IN THE HIGH COURT OF TANZANIA AT ThBORA.

APPELLATE JURISDICTION -•(mBoRGISTRY) . . :. (HC) CRIMINAL APPEAL NC. 34 OF 1976 ORIGINAL CRIMINIL CASE NO. 557 OF 1975 OF THE DISTRICT COURT OF T/BOA DISTRICT • AT TABORA . . •: •• - Before: A. Bahati, sq., Res, agistrate •. . •.: .: .- • ••., •• .• . . c... . .. ... ABDALLAHSHAB11N1 ... ... .. • . • . sOs oem...... • .... 4,PPELLAN.T ,•. (OriginA1 Accus) . ..-. •- . ... ., . verss. . .. 4• . • . . .. THEREPUBLIC RESPONDENT.-..: (Original Proseutor).. CHAPGE: 1st Ct Breaking into bui1c.ing with intent to ccmwat felony therein c/s 296 of the Penal Cede. Stealingbypersonemployed in the. Pubiió. ...... .;. • • .: Ser'•Vice c/s 270 QIld265ofthe Penal Code.

JUDGIENP SISYA, AG. J: ,. . .....- • ::. -. . . . .• -. . . .. The appellant was ccrivicted by the Resident agistrate, Tabera on two counts of breaking into a building with intent to commit a felony therein and Stealing by a person employed in the Public Service. 4.14e was sentenced to three years imprisonn'ent on each c unt with an order th..t the sentences shuld ran concurrent1y. He is now appealing. Evidence was led tc show that tre appellant is a watchman enployed by the Tabcr Regirn Coc'porative Uni - n. , On 3/9/75 the appellant approached one Shabani sb Ramadhani (P.3) who transports peoples articles in a cart which he p'ushes.an-d asked him ifhe, Shabani, ccul- transport his, i.e. appellant's, goods which were lying hear one Rhemtulla's grinding mact- ine. Shabani who had to transport some other person's firewood to Kanyenye first tcicl the appellant that he had an assignment first and that he, Shabani, wculu o tD Rhmtulla's grinding machine later. Indeed, 1atr, Shabani turned up at the place anc found the ppel1-'nt was with ancthcr person, one Jumanne Seleman i (PW.4). According to the evidence of Juinanne himself he t-oo was once a watchman employed by the sarrc Tabora Regicn Coperative Unihn. 1e, however, cic not cisciose why he ceased tc be the Union's employee. 1, Hc-wevor, according to appellant Jmanne was dismissed from service because (f. s-mc, theft

which apparently took place at the Unions premises. - On my 'evaluation of the 'ovidence I am sàtl5fled as was the • learned Resident ,IAag i s t ra te that appellant is the person who broke into the store and stole the two bags' of sugar. At this jinctureI may pause to observe that appellant, çn the breaking óount was charged under section 196 of the Penal.. Code. The particulars, however, all' ge as fellows:- • "Abdal.Iah Shabani, charged, on the 3rd'September. 9 1975 at about 17.30 hours withii thC Twnship, District and egion of Tabc'ra did bre-"k into the store of Tabora Region 'Cooperative Shop with'int.eñt to commit 'a felony there- to withstealing." It. can be oberved that the appellant was an this. count charged under a wrong. section. The .proper section is Section 297 "of the Penal, b ode. The qoion that arises now is what 18 the effect of this error in the sections of the law? It is m y considered opinion that this error:is not fta1and that it. iscuabl on.appeal. I do not think th.at. appellant was in any way embarrased or prejudiced in his defence,.' The parti-, ­ culars,of!the offence in this count clearly show all the necessary 'elements of the .offene. --- '1 1 ant had the benefit of a full't'rial. Inthe result, I 'am.satisfied.that the conviction A on, :.,both counts 'is sound and is hereby upheld. Thrning'to sentence, the learned Resident Magistrate .observed

that the, offences on both counts are Scheduled under the 1'iimum Sentencesct, '1972. However, the offence of breaking uirder' Section 297 'of the Penal bode is not Scheduled under the I'-inimurn Sentenc'es Act. At the same time tairings into account the fact that the offèñce. was cleverly done and that had Sidi no't taken thC steps which he tk and for which he ought to be commended an 'innocent Sales Clerk would have Suffered the .:consequenccs 'a sentence of three years imprisonment is. quite • appropriate. This sentence,' however, needs confirmation and. this I hereby do. • The5sentence on count two is the Minimum provided by the law for such offences. In the final result this apea]s fci1s and it is dismissed In its. entirety., Delivered in open Court atabor this 31st March, 19760 • ' '' '5 , 0 •• •• .' ' Tabc'ra, T. • H. B e 31st March, 1976. . . S'.: AG. JUDGE. • I certify that this is ru copy. of' the original.. • • DISTRICT'RGISTRAR, TABOP.A.