19750310 TZHC Mwanza3

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE. JURISDICTION u HIGH COURT CRIMINAL APPEAL NO. 284 oF974. (Original Criminal Case No 81 of 1.972 of. the District Court of • : Maswastct at Naswa- Before IoL,.Masawe,: . .Esq., -. District Magistrate JOHN MUSA. 0 00 00000 0 00 0 0 0 O 000 00 000 000 0 0 0 0 000 b 09 bo O,.AP.PELLANT 0 ..;Original.. Acu.se) VSUS •. .. .' . .. T HE REPUBLIC060000 000000•00000000 0000000000000..000000000RESPONDENT (OriginaJ.Po.secutor) . .t ;va -QoO- ,. • CFARGE: 1st CQunt:. Stealing a motor vehil?. .c/s.26. 5of the . .. .. :Pfll Code.0 . . . _. •. ..... ,.. . . 2nd Count: Escaping from lawful custody c/s 116of the Penal Cod.e.. . . . ..• J U D G M E N T MAGANGA, Ag. J. - The appellant was convicted of stealing,amotpr .; . .... vehicle and escaping frcth.. lawful custody contrary to sections ..2,651 116 of the Penal Code. The trial court found it established that on the evening of 15th November 1969 Ngusa Jagadi (.W.6) parked a lorry Registration No. MZE 5833'at the premises of P.W.2 : dwird Ngwt..ani. The..': following day the lorry was found missing. It was also not disputed that on 16th November 1969 Edward reported the theft to Bariadi Police Station. On 17th of the same month Edward went around looking for the stolen vehicle. He was accompanied by a detective corporal (P.W.1). While driving along Musoma/Mwanza road they saw the vehicle parked by the roadside and the appellant was seen working on the engine. When the appel- lant saw the group he jumped off the bonnet and started running away. He was chased and in the course of that he was shot with a gun in the abdomen. He was then apprehended. In his defence the appellant admitted to have been found working on the engine of the stolen lorry. His explanation was that he was an innocent passenger in the vehicle and was just help- ing to repair it after it had developed some engine trouble when he was arrested. He stated that he ran away because the party which arrested him had guns and were threatening to shoot those in the vehicle. The learned trial Magistrate in a well reasoned judgment rejected the appellant*s defence and found him to be the thef of the lorry. He held that the appellantis act of running away from the lorry when he saw P..W.1 with his team approach and his failure to stop despite the warn- ing shot which was fired in the air, together with his attempt to stab P.W,2 with a knife were inconsistent with his innocence. In his memorandum of appeal the appellant has stressed the point that the people whom he wanted to testify as his defence witnesses never did so... He alleges that the trial Magistrate did not afford him suffi- cient opportunity to have his witnesses traced. This point was however well taken care of. The police officer to whom the summonses were handed for service swore in court that he went to all the places the appellant said his witnesses were residing but none of the people mentioned by the appellant was known at the addresses given by the appellant himself. The trial Magistrate was therefore entitled to conclude, as he did, that the names given by the appellant were fake and the people fictitious. 00 0 -2- He also complains that he had objected to being tried by the Magistrate because they had quarrelled. This claim is clearly an after-thought as nowhere in the record is this recorded. In any case an accused person has no ripht to choose the magistrate to try his case0 Such an application can only he entertained wher it is shown that a magistrate has an interest in the cae, or for such other similar reason0 The appellant has not even claimed in his memoranduin of appeal that the trial Magistrate had such ar'interèt The evidence that there wa therefore, irreistihly pointed to the appellart• as the person.who stole the lorry0 His con- viction on this count is therOfOre 'uphed In the escape count, the appellant himself admitted to have escaped from thecustody.of rison warder whil.e he was admitted in hospital for treatment of the bullet wound0 His explanation that he did so for fear of being charged with the theft of a:notor - vehicle was no defence0 This conviction is also fully supported0 As to sentence, the trial Magistrate properly addressed himself on the gravity of the offence of motor vehicle theft. -{e took into considera- tion the appellant's admitted record of....previous convictions, and only after this did he arrive at the sentence he considered apptopriate. The appeal against sontencehas'no'Jerit at all. This àpea3is.th.erefore .dia- missed in its entirety. The sentence of 4 years imprisonment which requires donfirmation by this Court , , is confirmed. Delivered this 10th day of MARCH, 1975. \\' , A \) MWANZAO ' R,'B. MGA14GA 10th MARCH, 19750 AG- JUDGE Mwanyika for the Republic:. ' ' .