19830908 TZHC Arusha1

V V 40 - - - I.11 TH9,HIGH COURT OF TANZLNIA - AT ARUSA CRIMINAL APPEAL NO. io or 1979 •

JOSHAT NG APPMLANT VRtJ5 II E R.BU:BLIC: 000000 a o 0000000000 * 000 0 000 000 00 St 0.00000; 000000000 .flESpOIqT... D.KAPOORAGJ. ' V•V . . . VV V V ..... V This is an appeal from the decision of the District Court of Pare at Same which the appellant, was charged c/s. 296 and 265 Of the Penal Code and convicted on d substituted charge(substitutod by ithe Thial Magistrate in his judgheit)' c/s 265 and 271 of the Penal Code. It appears from the record that three different Magistrates' heard the pse in parts befor' ,b the case was completed by the third magistrate. This change of Magistrate'd.id' not occassion any infringement of the rules as on each occassioih,e. accused was advised of hisrights and asked if hewished to recall he w.tnesaes that had already given evidence. The next point that becomes necessary to decide is whether the 1±al Magistrate had any legal right to substitute a ch&ge in the course of..dOliver- ing his judgment,. Appellant was charged jointly with. ajother (vho was acquitted) two offences under the penal code and both these offences were chged under one count. This was not the correct procedure. Each charge should have been set up under a separate count — VSection 136(2) of Criminal Procedure Code. However this did not occassioi any- injustice to the appellant. Now I proceed to the question of substiti.3tion of the char& by the L'ial Magistrate Since the

original court had Section .2G5 of the Penal Code cléarI 0 set out although not as it ought to have beet ;inder the provisirns of Section ..1362) of C. P. C. , and particulars of the ,ffences c1iaged; the appellant was not prejudiced by this substitution o ' the offence. In my opinion there was no substitution as the appellant va4 charged on two offences contained in V one pul , and convicted in respect oV. only one offence. This clears the first two points thich wcre minuted en the appeal was V admitted. V I now proceed to the grounds of .pea1 p*. .t forward the appellant. Lyimo, Learned State did not support conviction. It is clear from the .evideno.adduced that cash cmounting to a sum of Shs0 57,651/45 was collected by the 1TC SaME Branch from ls from 30th TDcenber, 1977 to 2nd January 1973 This sum of money was deposited in the cash box be1ongi± to the said.1TC Branch0 The said sum of Shs. 57 1 651/45 together with the cash box and other items all totalling cp:iinal figure in sum of She. 5Q,521j45 was stolen during the iüght of 2nd and 3rd January 1978. Th theft was, discovred by the appellant and reported to the police by ThI 1 and oLhers. lthgh the particulars of the offence show that the total cash stolen was Sas. 57,651/45 and 1.5 ,gaflons of cookinoi1and3 .p1ct of whef1our all valued at Shs. 5852l/45 there is no evidence in respect of all items othef than cash.

Regerdin, the summaries of daily sales introduced in evidence SI? as Exhibits 'A' 'B' .nd 'C' 1by P17 2 I did not see any of these exhibits in the original file. On calculating the ound. total of exhibits A,B,& C as testified by FII2 I. find that the cash sum' amounts to Shs 55,114/45•• (Shs 2421/75 + Shs. 45,284/70 and Sha. 7408/). , The 'frial Magistrate has already stated that there is no evidence of storobreaking against the oppellant The only reason for convicting the appellant for the offence of stealing seems to based on the evionce that the appellant collected cash for three days as narrated. by FW 2 and did not hand over to t e cashier. Nd one said when the cash box was last eon at the R.TC Shop No one said when the tins of oil were lat seen5 ore 'd 1- 'w -nany ins of 000kig oil were in the store of ERTO and vIot in factTs missing. Appellant was only. a SALSAiT 1itha l ut the ST0REER Ena B/ljCH iiANAG lTerc hey not responsible for the items in t i ' KRTC Sto"e9 'hexe is no proof th,at all bhe cas 01 lare part thereof was found he appellant hero is no proof of cosh bo having been found with the opp elI nnt. Tn rnjr opinion inyone could have stLer Iat money. For the reasons I 'aVe cc ... /3. 0 -3-. For the reasons I have sent out herein above I find there was no conclusive evidence to convict the appellant on a charge of stealing.. Accord- inly I allow the appeal, quash the conviction, set aside the sentence and order immediate release of the appellant from custody unless otherwise lawfully held. Order of refund of a sum of Shs. 58,520/45 is hereby set a.&.de. 1 Sgd.,D, N. KP0OR, AG. J. 7/9/83. / Delivered on 8/9/1983. D. N. ICAPOOR, AG. J. 8 /9 A.983 , I certifr to be a true copy of the original,