19711019 TZCA Dar es Salaam

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IN THU HIGH COURT OF TANZANIA AT 2ThR VS SIJAM Ciraina1 Appeal No. 409 of 1971 Origtnai Criminal Case tTo. 72 of 1971 of the ietrict Court of 18wara District at Mtwara before: Y,S. Mperella, Rsq., District iaistrate. ALl DALI . o • • • • ..••••.... •. . . . . . • . . ., . ,. APSLLANT V versus THE; RRPUJ3LZ(. • . a I • • • I • S SI I I I I I I I $ I I * I a IISI RRSi.OHDNT CHARGE Stealing c/s 265 of the renal Cçde. WAKA31D0 AG4 J. - The ape1iant in this ease was charged before the twara Ds;rict Courtiof stealing contrary to section 265 of the Penal Code. He was convicted and sentenced to one year's imprisonment. He has appealed against both conviction and sentence. 'it was aile;ed by the prosecution that the appellant and the comiainant iore among many people wkio were at Nanyeia poinbo shop on 3rd April 1971. The complainant had gone to the pombe shop on a bicycle which h.e jiaced under a mango tiee, not far from the pombe shop. After taking a censideahle amount of liquor, complainant fell fast asleep and a;el1an.t noticing this, took complainant ' s bicycle and rodeaway. There were, however, people, including two police constables, who had soon appellant take away complainant's bicycle. These people together with the eotiiplinant went out in eearch of the appellant. it did not take them long to apprehend the appellant but at that time he did not have the stolen bic.ycle.

SubsoquerAtly the bicycle was found hidden in the bush by the side of the road leading to appellant's home. Appellant was accordingly charged anUconvicted of stealing the boycle. The appeliantmerely denied stealing the bicycle alleging that the police had for no apparent reason framed him. I do not think there is any subscance in this kind of arguient. Perusal of the record p1ain1 shows that there was overwhelming evidence to ground his conviction. 1 cannot therefore accept thesey, groundless and unsubstantiated attacks upon the prosecution witnesses. In his memorandum of appeal, appellant has claimed that he was prevented by the trial Court from calling his witnesa, one Musea Selernani. This allegation is patently false. There is nowhere on the record where the appellant is recorded as having indicated his desire to call any witness or w±tness. In fact the trial Iøagietrato's note relating to a V)peilant's answer after being addressed in terms of section 206 of the Criminal o i .2 2. Procedure Code puts this matter beyond any dispute. Appellant is recorded as saying "Ii shall give evidence on oath. I have no witness to ca11.' I have no reason to think that the Magistrate could have recorded statements other than those made by the appellant. I would accordingly reject this baseless attack upon the trial Magistrate's integrity and impartiality. Appeal against conviction

is accordingly dismissed. As reardssentonoe, the Ilagistrate serit,enced the appellant to one year's imprisonment despite the fact that appellant had adniitted to having two previous convictions for theft. With respect, this sentence does rot in my opinion, indicate that - th6 trial Magistrate considered the fact that the appellant was a hardened criminal and not a first offender. In all the circumstances of the case, Irn satisfied that the sentence imposed is absurdly inequate and oi4ht to be enhanced. It is to be hoped that a'\longer sojourn in prizion will turn him from being a sucker and a nuisance into a self-reliant low and a hard working responsible citizen. The sentence imposed is accordingly enhanced from one year to three years' imprisonment. In the result this appeal is disissed in its entirety. Delivered in Court this N day of October, 1971- (Y.M,M. MiAKAfl.NDO) AG. JUDGJ.