19841124 TZCA Mwanza3

IN THE COURT OF APPEAL OF TANZANIA ( AT MWANZA (CORAM Nalali C. J. Mus ta fa, J and Kisanqa JA CRIMINAL APPEAL NO. 27 OF 1983 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS 0 0 APPELLANT A N D WANJARA s/0 NYAKUJERWA • . RESPONDENT f (Appeal from the decision of the High Court of Tanzaflia at.Mwanza) Munyera, J. dated the 22nd day of November, 1982 JUDGMENT OF THE COURT MUSTAFA J.A.: The respondent was charged with five counts in the District Court at iwanza, two counts of stealing by servant contrary to section 270 and 265 of the Penal Code, and three counts of obtaining goods by false pretericescóntrary to section 302 of the Penal Code. The respondent was atquittéd of the theft counts as well as on one count of obtaining, but was convicted on two counts, being counts four and five at the trial court, of obtaining goods by false pretences, and sentenced to three years' imprisonment on each count, the sentences to run concurrently. The respondent appealed to the High Court against his conviction on the two counts of obtaining. The first appellate judge concluded that on the two 5 courits of obtaining, the evidence adduced in support thereof clearly established theft by the respondent, not obtaining goods by false pretences. He was satisfied that the respondent had stolen the goods in question, not that he had obtained them by false pretences. He stated in his judgrnent -- •0 -2- "He should have been charged with tealing the property of the Government The conviction for otaining cannot be upheld0 But I am unable to accept the counsel's suggestion that the court should substithte conviction as stuted above The prose- cution is to blame for this incurable irregularity. 'I He allowed the respondent's appeal, quashed the conviction anl set aside the sentdnces imposed0. The Director of Public Prosecutions is appealing against the acquittal to this Court 0 The only ground urged before us by Mr0 Kidela for the Republic is that the judge had erred in not substituting a conviction for theft in the circumstances under the provisions of section 187(2), of the Criminal Procedure Code0 Section 187(2) reads:- "When a person is charged with an offence under section 302 or 304 of the Penal Code and the Court is of opinion that he is not guilty of that offence but that he is guilty of the offence of stealing the thing in respect.of which he is charged, he may be convicted of that offence although he was not charged with it.". In our view, the provisions of section 187(2) supra apoly to this case 0 'Accepting, for the.purpose of this apodal, that the judge was right to have concluded that the €vidence adduced established that the respondent was guilty of theft annot of obtaining goods by false pretences, he Had power to substitute a conviction for theft in the circumstances. He erred in holding that he could not do so The respondent has submitted before us that he neithur stole nor obtained goods by false pretencos. In the circunstances, we allow the appeal, quash the order of the High Court and substitute a conviction for theft in counts four and five, and sentence the respondent to ... .13 • - 3- three yars' imp4sohrfteti on each count, the sentences to run concurrentij DATED t IAN ZA this 24th day ci November, 1984 S - \ : ;f y F. L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original0 ( B. P. MOSHI SENIOR DEPUTY REGISTRAR