19841017 TZHC Mbeya

s-'t 1I_1vvt WJ 1IIGII OF.T1ZAITIA •-- A? IJT JJ IDIOUIO RJGr:;Tff) CRI?iL] P1tL 'UO... 20 01'.-:'19 84. OUTIP L Cl TdTj L C' ITO. 109 OP 1 9 3 2 OF TIlL DEJIITCT COURT OF C DIttmRICT SIJTfIA JANGi Before L a O. I Tlelwa s c esident Nagistrate. GODFREY. 10RL:1NO • • . . , , • . .......... , • L?FLLLLNT •. IT2OU;3 -• THE RE(fl3IIC • •. • •••• • . . . . . • RES2011-D-21J. - CHARGE Stealing by .uDlic Servant c . 270 and 265 of the fenal Code. J.TJ D Gi-tl NT Th.s 4.s an appeal ir C&'3J1i Y 1 I C who wos (,, onvj-cteC4 of stealing by public servant coirary s lection 27) bf the i-1 o e and senenoed to three years inpi CL €. • The rain point hare fo decision is iha identity Oi tho b1nnke which was founcl with the aeiiaa;. -he e11antas arrested by Detective Corporal Epimacus, 2:1.2 in Hazwi are:-. SuribaTana Distric while carrying the bianke in question, an: rhen intear-atpct. the apellant said that he had borrowed it Jror ilLS loe o0 w ciiis • ialth Centre, When, the loan ediste:.T w': shroght and ins:eoted the apDellant culd not show where he had-'Sijcd as a bcrrower of the, blanhet. That is i-rhen the appellant was hth'ged. Tho appellant not cros—exnjne PU.2. on' this evidence althouh I was given the opportunity to do so. The keepital secrst::.xy of Su:ibawanga governnerit hospital Vincent Muahi-, PW.i test-±Vicd- to C.: effect that b.c was suroned to go to the Police Station Su:.ana to identify a bJ.nb.et wbiah was Bald to.ave- .i:. been stOlen - from Ntwdsa 1ealth Centre. pJ1 went and 'viz the, b1tnhet which he identified to beihg to the Iiiniatry of Health. lthougih blankets in the Itihistry have red colour, this arttcular...onewas grey because-it -was bf elicl. ].l wen't on to say thit the blcethada the letter "Ge' uaridon it - rieaning government propertj. ?!.l .1said that a hospital st-E.ff siy borrw goVerrJent prty V,si,ing in the loan register. The defence was -tha the a::ollant- was a trained nuroe at Ntowisa Health Centre. He c.ie to F.unbawanga on duty and he took .with him a blanket which had the :ark G 1 on - the udo of it. lt is he who had marked * 2—. thatletter 'G" on the blaiket n 1 .ist oL ins jaare, 'ilen while at Sunbawanra I olioc came tc earôh his iouse ii Su bawana loo1dn for medicines. •t hey saw the blanket in the course f-.-t1ie search and they suspected it was ovein OiU piopert. .Lti arieoted him. J!he appellant had bought the blanet f'oi a traveller. ITis witnaic ierc not of any , help. IW.1 0 ithce, -'cl-'e e1lnt's uife iC. not know There the appellant had got the blanket frorii1 FroTi thia Cnc1 cnce Lie learned trial 1 a itrate found the case proved. The appellant in 'I'd s Lie.--icranOiz , of apel quetions w'iy the officer in charge Mtowisa 11ealth Centre was not call'd as a witnesrerding the blanket. 11e also saii at the traveller who sold hin the blanket was not called as a 'i:inc•r. althcuh he womted. him. One wonders.rherE this t±'áeller iiould have befound 1 The rucbrd does not show that the appellant wantea hiai as a-ritneos. The appellant went on to aay in his: petition of appeal that bia Witness had said that' blankets at i-towisa Health Centre are r r dachec and i.D. and not jus G nd that this dhowed. i s Ia kc ( li(R not .elonrj to the govo.nnem. Mr. Teexiba, iLa n i e Ltor'- e u ported the conviction arguin that it had been sufficie UThT C as lorin to the As I said at tn an isue for consideration anc' decision is whether th bl:e'i 5ol6is to the governmeit. Like the. - learned trial aistrata, Ic an also satiefied that Ph.l was a competent witness who could idn'Lify lovern: teat paororty. He told the court how this blanket turn& o jo roy inetCof hecurrert colour of he blankets in the Jini:ary which ic red. 11e said that this - was an old model a:-. :-ç-, and that the letter C s b Ci or - o CVi1iOi t, I onanot see how this evidence can be cL si ir1e( or ckiolj CVE.( • 1t iav be true that othe' blankets like the c1 vo L. ancLT.G. but this does not it prove PW.l wion i ci o —lbter ia C stdod for vormicnt. I find . .' . this issue of L,c. C o. t} tlan'-et to have been pived .yond . . apy- doubt s What is for co 'ai r 7r4 ekci1on noi is whether th6re,18 64 cleiV that the appell In ar icioi he 'tle itiom htowisa L Health Centrc. i' a e .i ' e'f et ±h t th a pollant olaame that he had burrowed, th bial fb\- h:ii5ida 11 er-.lth. -Cnt- but when the loan rester- did noi nnio - -th ije1ait. had rlothinr' töisay. --In - defence the app'ohan'i aic1 that ha bou-Iht tho blanket £ron a trveiler. I have no difficulty-in iindinC that it pela.nt- -story of buying it from the traveller wasr - ao'i tauc-'e-aiti' were -true he u1d-thae oId, - p. p • '4 P12 so' the ubment he was arrcsted also the evidence hous that the appellant knew that it was CovurnLlent propeity. But there is no evidence to show that the appe1lnt actually stole the hlank either from Ntowisa Health Centre or anyJherc- close, ho evidence was brout o show that there was a shortage of b1okots at. hiowisa. The offence which has been proved by the facts is receivine stolen jroperty c/s.11 of the Penal Code. I quash the conviction of stealini' by public servant and substitute theref'or •a conviction of receivind oteleu Property c/c.311 of the Penal Code by virtue of section 17 of the 0ririinalProcedure Code, and I sentence appellant to.. three year iieprisoniien± under ti iuun sentences Act. Apart from the variations asoVe the appeal is-ciisuissed in is entirety. - At Nbeya, d. J3AIIATI, 17th October, 19b4 JGB. Court: Judeent delivered in Court on 17 • 10.04. I'r. Toeioba fo renondon. For Aipe1Jxn .-. L.LJJIATI, 17th October, 1904 dUD. - C1RTIFIED ThTJP COPY OP DISThI .