na TZHC Mwanza 4

.1 Vc I TIL IIIH COURT OT TTZITIL at Iinza HIG'B COU'dT CJUiiIN±J F2FfL NO. 1 7 OF 1 972 ONIGINPJ CRI'IINeI CfS NO, 203 OF 1971 OF TNT,; DIOTF.ICT COT.JdT OF UFREWE DThT..IOT fT KAB IIcG-O Before ,. L, }uanonyolo, Esq, , ,,District Nagistrato Kajoka S/0 Potro Appellant V ore us The Republic. .,...... Respondent Chc Stealing from the person of anoth6r contrary to section 269 (a) of the Penal Coda, JUDC-FIiLLNT icISANGA J. The appellant and another whom I shall refer to as the first accused were jointly charged on the first count with soa ling Iron the- person of another contrary o section 269(a) of the Penal Code, The appellant alone was also charged on the second count with malicious damage to property contrary to section 326(1 ) of the Penal Code, and was further charged alone on counts three and fon,r with assaulting a police officer in the due omocution of his duty, and assaulting a person acting in aid of such officer respectively contrary to section 243(b) of the Penal Code. The first accused was acquitted on the charge of stoaling from the person of another but was found guilty of.tbo alternative o±'fcnce of receiving stolen property contrary to section 311 (1) of the Penal Code ,ndwas sentenced to nine months' imprisomnent. The appellant was acquitted only'on the second count.of'rialicious dm.oage to property but was found guilty as charged on the romaning thioo counts. He was sentenced to twelve months imprisonment on the first count and to Fhs. 751= fine or three months' imprisonment in default on each cf the 'other two counts. He now appeals against convictions and 'sontoncos. The first accused has' not appealed The evidence for the prosecution was to the effect that:,on'' the n-'tcri'-1 cey tbc co pl inoau (2 i 1 ) went o the bus s Gone in 1F-nsio to buy o ticko He h c' o)-a him o to bol of Sho 230/- which' he kept 'in, an 'Onvelo'po in the hip pocket of 1is trousol's. The money was 'in two 100/='no -bes, oie2O/= notoandr-two 5/='notes. At the bus stone. tbcre ' icro other poplo presen incluc t nag. th,o appellant and tb'o fif'St accused. The complainant paid for his ticket and received back some change. As he wanlc-d to hoop this change together with the rest of his money ho sudciendly c iscovroC thot ho nay in the envelope ins onc in ho LC (. iT3'.) had icon the appellant puing from the hip pocket f' thO coapja inant 's tiouses somcthinrhich lo,'kod like an envelope and having' done so the appellant walked away fast. Ph3 told the complainant about this whoreupor the complainant raised an alarm and on followinr: the direction which the appall- nt was said to have taken he saw at a distance both the apellant and -Ghe, iirst accused runeing away. Thc- collplainanc with the 'help of others trioe. to chase the appollant and his companion 2 but failed to apprehend thou. The complainant then reported the matter to the police and ietr eccoi.pmnicd the police to the home of t1hu fire -'c accused that same dey They found both the arpellant and the first accused there, The police arrested the first accused, ds the police were approaching, the first accused took out soteothing from his pocket and hid it in one of his socks and when after his arrest the police searched him they discovered that the thing so hidden was a 1 OCi/= note. ±fter arresting and searching the first accused the police proceeded to arrest the appellant but the appellant beCame violent and resisted the arrest in the course o' which he assaulted a police officer 9 and the F.ii.1 , the complainant. In his defence the appellant put up an alibi and completely denied the charges claiming that the charges were a frame up. The leanied tel magistrate rejected the appellant Is story end I think he was entitled to do so, 2,U.3 was a completely independent witness who had no axe to grind in the matter. He testified that he saw the appellant take out from the complainant I s pocket something which looked like en envelope and this ties up with the complainant 's evidence that his money was in an envelope in the pocket. It is not apparent why 2.h.3 should tell deloborate lies against the appellant. On the remaining tue counts of assauLt also there was the evidence of P. dl , 2 and 4 which implicates the appellant and once again I see no reason why those witnesses should tell deliberate lies against the appellant. I am therefore of the view that the prosecution e1( ence which woo oelicvc 1 us suf'fcmenu n which 'ho crja'l magistrate could have convicted the apoollant as lie did and I ccc no reason to interfere, Lceordingly I would dismiss the appeal against convictions, The aggregate sentence of iriprison- aunt imposed cannot he said to be excessive and it is hereby confirmed, In the result the appeal is dismissed in its entirety, I should point out what appears to be a misdirection by the trial magistrate in relation to the defence of the first accused. In his defence the first accused :putup an alibi end called his mother b.1o".3 who supported his story. in rejecting the defence of the first accused as supported by his mother the trial magistrate took into account an allegation that one Katceeo. who was sitting in court went outside and communicated to the mother what her son, the first accuced,had said in his defence, The trial magistrate stated that this was brought to his attention by the court orderly. The said court orderly however did not give evidence on this matter. The trial magistrate was therefore not entitled to rely on such an allegation made not fro.a the witness box to reject the prisoners defence. However, on reading through the judgerient it is clear that this was not the only grournd on which ho rejected the defence story; there were o thor grounds also including mat end contradictimns in the evidence of the mother of the first accused herself and also contradjetinus as between her evidence and tho.t of her soii, the first accused, a - of -ble view that having regard to the evidence as a whole had the learned trial magistrate properly directed himself on this issue he would have rejected the defence story as ho did, I mm therefore satisfied that the misdirection on the pert of the trial magistrate did not occassion any failure of justic.e and therefore such a misdirection could not amount to a ground for interfcrnce by this court, / 0 • ..JUDC-E