19750609 TZHC Mwanza

IN THE HICTH C0TJ2 O TANZANIA AT L!MTZA HIGH C0URT C211-1 11TAL APAL No. 539 OP 1974, . Origina1 Crflunal Case NO. 5 of .1974 of th? District Court of Bai1adiDistrict a Bariadi bfore Z. Rwejuna, Esq . ., D.M. CHARLES ISRAEL 1UJFBO. . . . APPELLII.NT vQrus THEPE.PUJTJIC ... .'. ; o.• a. ..o a • RESPONDENT CHARGE: Stealing c/s 265 of the Penal Code.

JULI LIAGJGA 9 AG .J.: The apoal against conviction is incorpo tent since the appellant btiivoca]i1y1cadcd guilty to the charge. The appeal was however adiitted because it was felt that the particulars did net disclose the off enco. The appellant was charged viiIi stealing contrair to bOt-ioi265 of the Penal Code. It was alleged in the particulars that, on 19th ctobor 1974 at Nyakabindi within Bariadi district he stole a ycle valued at Shs. 7, 000/= the proiierty of one Zakayo s/o Kikwa. He is recorded to have admitted the offence in the following words:- "I agree I stole the said notor-cycl&'. A plea of guilty was then entered and facts were given. On admitting the facts to be correct he was convicted and sentenced to five years imprisonment. I consider it apropriato to reproduce the facts given so as to bring out cloä.rly the variance between those facts and the particulars of the chargo. The facts as recorded are as follows:- "On 1 940/74 at about 11 a.n. Zakayo Kuso!a received infornation that the motor-cyclo he had sold Joseph Tfldlya had been stolen and that the suspect thereof was one Charles Israel Kumbo who is the accused in the dock. He (accused) had been seen riding it at Nyakabindi Trading Centre shortly prior to that report. He (Zakayo Kuskwa) and Josoph I,fldlya docidod to wait and soc. Till 20/10/74 in the morning he (accuzed) had net returned it to its owner. On

that voxr day (2040/74) they (Zakayo and Joseph) reported the matter at Bariadi Police Station .... On 2/11/74 the accused was seen riding the said motor-cycle in Talora town. The police thero stopped him (after they had received police message reporting the theft to all police stations in mainland Tanzania); arrested him and escorted him to Bariadi whore he was charged per charge sheet." From this resume of facts it is clear that the stolen motor-cycle was not the property of Zakayo Kusokwa as was alleged in the charge shoot. It is also implied in the resume of the facts that the original taking of the motor-cycle by the accused was not unlawful. This to mc is why Joseph only reported the theftafter the appellant had failed to return the motor-cycle on 2041/74. The appellant did not offer any explanation as to how he came to possess the motor-cycle. He is recorded to have admitted to have stolen it. In his momorandi.m of appeal he now denies to have admitted theft of the motor-cycle. He states that he pleaded in these words:- "I took it in the presence of the owner's wife (who is my sister) end infomed her that I waê going to stay for more than a week at Tabora and that I would be back late on 5th Novenbc.i 1974. The notor-cyclo, belongs to my brother- in-law." Clearly had he pleaded in so many words I do not think that the leanod magistrate woult have failod to record at

least some of then. t. the saiio time the facts recorded soon to show that the oinor of hc roGor—cycle es not in o hurry to rope Lhe'tlieft'. He had to wsit to soo if the accused as to iotur'n ho aotor—cyclo I.der those circunstoncee it cannot be said that tho- facs .givon_ disclosed the tofb of the motor—cycle by the appellant s despite his recorded adnission o' the offonco- I.would..iorthis reason quash the conviátion and set aside t10 sentence. The appollant, should be released forthwith unlcs he is otherwisC.la\fully held. Delivered this 9th day of June 1975. H. B.MLGMTGA .,. . 9th June, 1975. •. . AG. JWJGE . Mr. Llimwika for the ilopublic. Appellant s1ent.