19841008 TZHC Mbeya1

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LiTo o6'oN atvp VNINILD II:o OL 0l -'fl 'rJnaso ix HOLLOIaSDLQr . .iLv.i r(; T.T Tw ••\ •, 7flI17ZNT1L p3 auno II)IIi ia iI —2- il together with sciie items of clothing. iese were preserved in papo boxes used by the appellant for eping charity goods for the poor and the djs abl ed. lifter the discdrory of the stolen property in the office of the appellant it was decided to aparoach the appellant with a purpose Of solving the problem of theft of goods onicably. 'herefore PU.i, Pi.2 and .notry I'Iwanbene Pw.3, a da1jechist at the ::E,rjsh went to the hor:ie of the appellant to try and questioil the appellant concerning the theft of goods of the parish. The trio qtjestid the appellant who adnittod to have stolen the church goods. The appellant brought out soie roofing nails as part of the stolen items. He even allowed his quest±enerø to go thtQ his bedroom where many other things 'rere stolen which l.l identjfid to be from the church at Vwawa. ll these things were taken by P.l, P2 and NO with the consent of the appellant and with an unclerstdng that the appellant would attend a meeting a the 0hurch for the purpose of solving the theft problem amicably and in a chiis -bian manner. The appellant did not attend the meeting at the church and instead he i'eported to the police station that P,i, P'J.2 atd P'.3 had gone to his house 4.ud had 8tolon his oash hs.6,OOO/= and dLi ±3res of hoodS worth about 4OOO/=. Ogt. Thrton opened acase flo and cc.rw1ed the ateuent of the •ap:)ollant. 'hcn the file was handed Ovo to i)e otirC Jbgcant 111jor Brom !07 for. investi- tion. pO•7 was to investigate ahd arrest the oulpri s tho vte gaid to have robbed the appeL1ant. .7 intro toc i- .1, pW,5) . id he c1 isco- verod that the thrue stiopects hid not in fact stolen anything from the. appellant.. H6 was handed over all the pro.crty found from the .app1lants hone by VV1 .1 who n c .. itn. .7 convince 1 ci 1ie appellant had fale information. Ho tho:ceforo cinrge4 the a pellant accordingly. In iefeno the apellant said that PH.1 9 1-1.2 and ca:e to his home at niiit and Plashul a torch saying that they were suspicious of stolen property in ht They then entered thc house and iip the i1ouu 1 bedroom where they took clothes of his wife aic1 ehildrcn and oah.Shs.60001 11 . which was in the cloties 1 ey also took roofing nails and locks and hinges and left with then in their motor vehicle. On the next day the appellant went to repert the incident at the police tcction. The Po1ice wont with the aipellant to the church where the things taken from the appellant's holic were found rin1 with other church roads. rho:o t I1L sa.d that the matter should be of cc irt .ftor 1.1 ha4 asked them to solve the natter oaioabl 7kea h 119 imat to the01ristian ' -S . 0 • S • • • •,' 7 Council of the Chuh he e::Ja:'d :.:hat had 1:enonod. Put no solution was coming forth and the :pnellant went back to the police. Tb0 :to1ice referred bj.r. t the -•jhon aac. to raany other leoders. The appellant neVer succeeded in his efforts to have his things hack nd eventuall3r he was charged as at present. The aepellant "ll:d Iroce dii oanus 'to support his eviduc. The barbed tr:tai 1 agistrate foanc 1-J4 tO he a wituecs oi truth. Ho duly warned if ac - ii evideoa . s. child of tender years. He found the case anoved and convicted the appellant. In his roc-riorandnr Of aoaerl the appellant set out two gm ,,Ahds of appeal namely that the tr:.'.l 'agistraie was wrong in holding that the alleged stc'ben pro:ei't,t boioage to the con lainant and in holding that the appellant had given false formation to the Police. Mr. Hwakilasa for the appellant aeguod that the aroporty found at the bode of the appellant was not i ceniLiod by ia' .1 iy pointing to any marks thd the appellant was cjaiiaing ih property to be his as we'll. Secondly Ar. Mwakilasa submitted ti14 tho jugncni of the tija1 court w a s not much of a judnt beause it only dealt with the evidence qf pi14 which e'd.dencë did not identify whal was in the --)a vq elp carried by the apielJtht when ~ W.4 saw him. In reply •'!r. Lapinga for the respondent bmitted that the evidence on record- wa .unugh to prove the charge. I will start with the count oX' ivtwp fa1a I nierit in the appeal agaiiur this eçurt boeause it is abundantly clear fr om the evidence on reeord %hst there was no obber by P.l, and P 0 .3 of the Property of t]ieappelant. en the evjdencc of .-nook Ngaj ThJ.4 clearly shows that the proaerty from the house of the appellant vas taken with the consent of the ax?ellant himself,ff ,1 . 4 was found at the home of the appellant by b ° .l, P.2 and PP.3 and he was üsked to leav. H0 instead stayed outside the houc of the anpoUnt. T!n h goods being loaded in a motor vehicle and then P.1, P.2 ad P.i3 ei DW.4 went to the anellani who told him thatPW.1, 1'.2 and 11 .3 bad taken some of his clothes and ->1 ,us.6000/= plus roofing nails. It it tras true that the appellant had boon robbed he mould have told. Th1,4 so., 4ien there fore the appellant reported at the -olice diation that he Iv A been robbej he lmew that he was telling a lie. Therefore he was ri1ht1' chcrd and convicted of givja flse information to a "eion emrp11 in the publie 'service. ' . . . . . -4.-. With regd to the co:yvicticni of theft, there is evidence fren pW • 2 and pW•3 that the app:1Lieni acinjttcd stcali:• the oods found in his house and that is why he al1owe'.I'.1, P.2 and ii[.3 to toJe those ooc1s and then resolve the natter in a chris an:nd a:dcabl3 way buceusc the appellant was a parishioner at Vwawa o:an Catholic Parish. Jecond1y, even after Detective ierveant iajor rom (pe•7) had invosti'ated the case in which P .1, P .2 and P .3 were ho suspected and the uppeilant the complainant, the whole ratter was loft to be i'osolved acilcably. Tne • appellant himself said in his evidence that the 2olice left the matter to • be resolved areicably between the appellant on the one hand cud P.1, P.2 and pW•3 on the other. Thi.dly, it took thQ appellant 10 days (frou 7,11/82 to 17/11/82) to report the alleged theft of his property to the alice, This delay coupled with other fasts cicarly shows that the slain of owner- ship of the seisod Pio)ery was not geiriio. Pourthly, there waz the evidenc of PW.4 to the effect tint the abpellani waa seen with Parcels which later turned out to ho clothes which were found by b.2 in the office which the appellant uod at the -anieh. T.LJO aurellant did not for a nonont coinoent on this evidence which loaves it urchallenfed. Iii view of all that I cannot see how the claim by the noneilani about the oroperty to be1on to I him can be true. It is true that 2'.I dLd not point to _-r_anTka but he d.id ldentify the foods seined from the ape1i.nt' s hous.e ljocauskv of their place of oriin. P}ces all those facis are cut togcthe, tsu c1ape of theft stands proved. I auo with r. waa.±asa that the lasod ?Iaistrato did not naalno the ovidene properly but this boin a first appeal, this court is oatitied to co.uess the ev.dence afresh. 11Y evalua- tion of the evidence on record lves me in no .4oubi about he gout of the appellant on the count of theft. I theofore diss the et against conviction even on this count. With regard to sentence, thoi'e was no ippçl irst it. Z 409 nothing wrong with the sentence imosod on ess coint. rP he StflCO on count two is confirid. e apeq. is conoquenly disnissed ji its entirety. Oe last word clout this case. The count of sor breoing *M stealing is not really rserly frenod. 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