19801110 TZHC Tanga

m4g C-zi 10 4;• IN THE HIGH COURT OF TANZANIA AT TANGA APPELLATE 3URISDICTION dRIMINAL APPEAL No61 OP 1979 çoriginai Criminal Case no 31 of 1979 of the (District Court of Handeni at Handeni. Before: M.H. Baicari, Esq., D/Magistra.ie > LUGEIWO KUMBIRWA...... . ... . .APPELLANT (Orig. accused) Versus THE REPUIC .............. RESPONDENT (Orig prosecutor) CHARGE: let, 2nd 3rd, 4th, 5th & >6th Count: Cattle theft c/s 268 (i) and 265of the Penal Code Cap Vol.1 of the laWa J U D G E M E N P Sisya, J: - The appellant and three other,who were acquitted at the tria1 were charged with six counts of Cattle theft The appellant was convicted and sentenced to five years imprisonment. He is now appealing There was overwhelming evidence to show that the appellant was p at the very least, one of the persons Who actually stole eleven goats belonging to the complainants, PW1 to PW6, inc1usive He appellant, was found With the said eleven goats in the buSh' at Misima only a day after the theft Not only that When apprehended he voluntarily confessed to the theft to PW7 and, thereafter, he twice made abortive attempts to escape When he was called upon to defend himself at the. trial he elected not to say anything and thereby he miserably, failed to give an account as to how he came by the possession of the goats. Without much ado the conviction in the case was p therefor 9 a must The appeal wasp Vt0 i : VVV VAL nevertheless, admitted--to heariug. because the learned trial Magistrate entered, So to Speak, an dmnibus conviction and he also passed an omnibus sentejice on all the six counts. Without beating about the bush, this was highly irregular The learned trial Magistrate Who a incidentally, is an experienced Magistrate is hereby reminded that In a case involving more than one Count it Ls incumbent upon the trial Court to deal with each Count separately A conviction or acquittal, whichever may be the case s should be entered in respect of each Count in as much as in the case of conviction s sentence Should. also be passed' on each count separatelyThe rea son behin'this Is not hard to find Con.tusion is bound to arise on the remaining or the rest of the counts when an appeal has beefl allowed, conviction qunshed and sentence i3et aside, in respect of one (or evzi more) ofthe count s on which an oinibus conviction and sentence have been entered and passed In the instant case s however, I an satisfiedthat, the Irregularity did not occaion.any. failure of juatice and thatit is curable under Section 346of the CriminAl. Procedure Code As aforesaid each: ant. of the six counts arged the appellant with cattle theft. The sentence of five years Imprisonment which was passed by the trial Court on the appellant is the minimum under the law s i.e. the Minimum Sentencea Act s 1972 Therefore even if a sentence was Imposed on each and every count the appellant would, nevertheless 1 have not gone to prison for a lesser period. In the final result this appeal fails and it is dismissed mite entirety. V Delivered in open Court at Tanga this '10th' day of November, V 1980