19801114 TZHC Mbeya1

C:- - 1 00EC 1980 iX TfM 'UGH =ZU O AT MBEYA APPELLATE JURISDICTION CRD'ZLNAL APPELL NO, 116 OP 1900 (oRxGniu CRININAI CASE NO, 97 OF 1977 OF THE DISTRICT COURT OF SU L1qiUTG& DISTRICT AT STJ1GA) IESTORY S10KAWINGO J.PPLLAT versus THE REPIThLIC $64.4.°%.• ...• .,•. •. •... .. BESP0NJP. JUDGMENT JY11ITTA J#0 This is an appeal f3om a decision of the district court of Sumbawanga district whereby the appellant was convicted of storebreaking3 orttra.ry 4o s 296(1) of the Penal Codes' and 's sentenced t a- terxmof three- yàr 1 irnsoxunent. Mr Teemba, counsel for the Republic, says that the lower oourtLs decision is sound s 'I repectfü11y agree. There was no dIspute at the trial over the faot that oziithènit of 27/28th November, 1976, the store &:Condl SalatoryMsanwa1e was broken into and several bags of ain were stolen therfroni. • According to PI3, Bertad/o Kilunga moxning the appellant tried to sell: to her 43orae ingemiilet which was a gunny bag. The witness had rio'money. The appellant left the • w - - bag at her house, promising that he would collect it later. He did not keep his promise. Intëàd hèdi.peared from the village, He 'was -arrested a.te several months had pséd • The apellant' denied having taken any part -in the criiiWwas charged ith.He olained that on Novethber 30, 19761he-left fo a piacecalied Kapozo; he wén there jnoriflectiôn' with sozae buajness, He called two witnesses one 1Kawcngo M)eli and one 'John Mwanaline, The idencé of the two'itnesses tended to lend - -2- weight to the cu±ion case, Kawingo 6.8.jd ifltOali g that the appellant escaped. f.oii the village and that that event !book place on November 29, 197 6 . The witness also testified to the effect that in November 1976 the aPpellant owned neither maize nor fingertnillet John sa&d among other things; "After an allegation that aocd. had stolen the fingermillet he escaped frpin the village." The learned trial magistrate analysed the evidence before him, and at the end of that exeri.o he was aat4afiad tha4 the- prosecutor had proved his cases. I think that finding was justified.. .&ccord.ing to his dwn withess, the appellant had no fingeratllet in November 19769 and yet on November 28, 1976 he, the appellant, was in possession of some fingermille,t which he tried to dispose of by s11iñg £t to Berta d/o Kilenga. cirred. oily a ple alvatory Xet ih 1th ppoI&t uie11t?a Beita ié ..ósi1gi t. :cre,: tes- 1e did. ndt.go. Ukdo %h tes ibus,.The 1eaned 9':.-MPO try.i lie s i3to1r that had;: ped:ftohrth&i11age, I can see no reason or ground to fault ihaf TiiidThg. The fdñ- ws tl,r bsed-othe b f r evidenoe - of he 'appellant's o*n itness ilihe 1ge- thof riw .that: t á1143r; &f 4he i4ete1 U6 pel-la iJ-f;,-b6yond'reas6hable 'doutVI--oul I eaI i-ivic'tiOn.; 7b 'Thééal ajs t 'srItnce. 4hink, - 'y in to seitencei. The éziine th apéiraä has cOrnjlained . .. •i .. • '. •' : e•' ,.-A.. I - 3 — agai.nst is th.rn1njmum stzioe prescribed by law: sees. 4(a) of the Mjnirau.m Sentences Act 9 1972. It cannofr be reduced by any court of law, Before parting with this oase I desire to say one or two things, The learned trial magistrate appears to think that the words and "seize" are synonymous. That is not correct. It is a wrong use of the word "arrest" to say, for example: police constable yesterday arrested a bundle of clothes." What the constable must have doneis to seize the bundle, That is one thing. The second thing I wish to say is that the citation of s • 265 of the Penal Code to the whic.3 was id at the appellant's door was §uperiluous. Section 296(1) of the Penal Code creates a composite oIence and, therefore, the - 5 citation of that section is enouh. I hope these two observations -bë is4 . dis ía •iad.n isen.tiretj.. B J. !.Si1ATTA ':t:. 'i, - c •:rLLi tr I - 31JD€E.c .1 ft-: L Delivered this 14th day o.t' No'embe', 198b, in the presence of .' Mr Teemba, counsel for the Republic, cc 'y B. A. SAMATT1. ....C• -.- .,r .. - JUDGE. 7 dor J]¼-, T c te r . .... L1 -..-:i. -t.•; :-± t.'-.'•-.-4- •. -