19750623 TZHC Dodoma

t.____. ___ •1 IN THE HIGH COURT OF TANZANIA }(b075 AT DODOMA 2 APPELLATE JURISDICTION / HIGH COURT CRIMINAL APPEAL No. 125 OF 1974 ORIGINAL CRIMINAL CASE No. 720 OF 1973 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA Before P.S. Mshote, Esq., Resident Magistrate NKANIBI LEWAS 0 . . . , , . . . . APPELlANT (Original Accused) THE REPUBLIC ........... versus , RESPONDENT (Original Prosecutor) CHARGE One count of Burglary c/s 294(1) of the Penal Code. One count of Stealing c/s 265 of the Penal Code. One count of Robbery with violence c/s 285 and 286 of the Penal Code. One count of cattle theft c/s 265 and 268 the Penal Code. J U D G M E N T MWESIUMO, Ag. J. The appellant Nkambi s/o Lewasc appeared, with four others, who were later on acquitted, hpf'ore Dodoma District Court charged with one count of bugJary contrary to section 294(1) one Count of Stealing contrary to section 265, one count of robbery with violence contrary to section 285 and 286 and the fourth count of cattle theft contrary to section 268 and 265 of the Penal Code and all of them pleaded Not guilty. The appellant was found guilty on the 3rd and 4th counls and together with the others who were acquitted in all the fours counts he was acquitted on the 1st and 2nd counts. Aggrieved by that decision he now appeals to this Court against both conviction and sentence. As rightly pointed out by the Judge who minuted on the appeal file and not contested by the Republic the 3rd count and the 4th count revolve.on the same set of facts involving the same animals alleged to have been robbed and stolen. Therefore there should have been only one count of robbery with violence which is more grave thah that of cattle theft gathering from the weight of penalty prescribed for the two offences, or the two counts could have been simultaneous1 , * proceeded with in the alternative, that is the 3rd count c.uld be of robbery with violence and or in the alternative the count of theft. I shall finalize this aspect of the appeal at a later stag3. Now on the question of conviction, on perusal of the record of the trial court, and having weighed it against the memorundum of appeal, I agree that the main issue involved was that . - 2 - of identification of' the culprit. Like the lowerCourt, I am satisfied that the appellant was properly identified as being among the gangsters who robbed the complainant of his cattle. 4 Therefore his conviction cannot be faulted and I thus uphold it subject to what I shall say about putting the two counts as conseOutivé counts1 - Going back to the question of the joinder of the two counts, that is the 3rd and 4th counts, 'it is wrqng to punish a person twice for the same offence. On this point section 21 of the Penal Code is very clear' and it4 states: 11 21. A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence." I am therefore impelled in law to partly allow this appeal In so doing I order that the conviction and sentence on the 4th count, which deals with catt]s theft be and is hereby set aside, thereby leaving only the conviction and sentence on the 3rd count. Thus this appeal is partly allowed and partly dismissed as indicated above but that does not in fact alter the duration during which the appellant shall serve his prison sentence of 7 years. Finally just for the sake of clarification of the compensation order of the trial court the appellant shall compensate the complainant 26 cattle wheich were unrecovered or a sum of money commensurate thereto. Delivered in open court at Dodoma this 23rd day of June 1 975. E.A. Mwesiumo Ag. Judge. For Republic: V.K.D. Lyimo, State Attorney For Appellant: Absent.