19710514 TZHC Arusha2

/ , Judgmeat or Order on Appeal (s. 320) Criminal Form No. 33 (Approved by the High Court under Section 352 of the Criminal Procedure Code). Summary rejection (s. 317) IN THE HIGH COURT OF TANZANIA APPELLATE JURISDICTION L 1 20 1UMLNAL APPEAL No ......................... or 19.Th.i Original Criminal Csae No ................... 32). ................. of 19.70. of the District Court of District at ........... ............................................. before ............ . . .. . XI ... ......... Esq., #a.teAtv_btkstrp ta/District Magistrate. Appellant (Original Accused) rersus THE REPUBLIC .......................... ............................................... Respondent (Original Prosecutor) CHARGE: Ist Cotmt 1taring ixto a dwelling hone with intent to commit a felony c/s 295 Vol. 1 of the Laws Cap. 16. 2n4 counts Steeling a/s 265 of the Laws Cap. 16 Vol. 1 of the Laws. I) EWXKIHA, A0. J. th. appellant was convicted of entering with intent and stealing. He was .entsnosd to twelve mouths Imprisonment on each eount. He is now appealing, he appallant was first sa.n in the hous. by PW 1. Lucia who found him in the sitting rooe at 8.00 p.s. Lucia wne carrying a lighted lamp with which she identified him. The appellant was very farstlisr to bar. When she saw him, he was carrying PW 2 8t.phsn's box. He pushed her and she raised the alarm. As he approached the acen., $tephen ss* the eppsflont carrying his b•z. He threatened hia with a club end asda his escape. Not surprisingly the learned trial Hegistrata convicted him as he was fully entitld to do In view of the overwhelming evidence against the appellant. The sentence awarded to his cannot be said to be erring on* way or the other so as to call for interference. In the event the appeal is hereby reeoted summarily. Sgd • ii. H. A. WUXKA -,-- - AG. J 0 P Døm 10224/12-65/60m/4up Ixoji iifc& C ) IN THE EIWi COURT OF TANZANIA AT AHUSHA J) APPELLATE JURISDICTION CRfliIINAL APPEAL NO. 19 OF 1971 ORIGINAL CRIMINAL CASE NO. 254 OF 1970 OF THE DISTRICT COURT OF PARE DISTRICT AT SAME Before C.H. amati, Esq., Distriøt Magistrate 4 LALAi 0/0 ELlA a..., a. a,, • .•* .. eu .i...... as.... APPELLANT/ACCUSED versus THE REPUBLIC . a....s....,.......o.,ea.....,.s.... RESPONDENT/PROSECUTOR CHARGE: Personating Public Officer contrary to section 100,. (2) of the Penal Code Vol. 1 Cap. 16 of te revised laws. 2tL JUDG1ENT WIKIJA, AG. J. — The appellant was charged with personating a police officer. In his trial it was revealed that he had in fact committed another offence, namely criminal trespass. There was no evidence in 4 support of the char€e of personating a Police Officer. The trial court then acquitted the appellant of that charge and oonvioted him of crimi- nal trespass. He was senerioed to nine months imprisonment on 10/11/7. He is now appealing against conviction and sentence. Presumably the learned magistrate who convicted the appellant purported to act under section 181 of the Crimna1 2zz Procedure Code. If that was the case it must respectfully be pointed out that te section was grossly misapplied. For the facts of the offence of peruonating a police officer do not in any way disoloLe the ingredients of the oifenoe of criminal trespass. Section 181 of the Criminal Procedure Code reads:- "(1) when a person is charged wti an offence consisting of several particulars combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining parti- culars are not proved, he may be convicted of the minor offence although he was not charged with it. The rationale of this rule is that the accused will be preudioed if in the course of his trial an entirely new offence is revealed and be is convioted with it. He will not have had time to prepare his defence. Although both personating a police officer and criminal trespase are misdomeanours, the ingredients of the former do not incorporate the ingredients of the latter. In other words, the latter offence is neither cognate nor kindred to the former. From the reasons above it is clear the appellant was improperly convicted, Accordingly his conviction is quashed and the sentence thereof set ajde. He is to be released immediately unless he has qw.dified for continued imprisonment by some other unlawful act.. Arusha 14/5/71 (M.H.A. IwIKIMA) .G. 3 U D GE jurn