1740831 TZHC Mwanza

-t IN TE HIGH COURT OF XANZANIA T MWAN ZA, - J4 •0 APPELLATE JURISDICTION •Hicjh.Cout Crimihal Appeal No. 246 of 1974 Original Criminal Case No0 85 of 1973 )f the District Curt of Lkerewe District at 1 eoongo Before, Mutakyawa, Esc , District Magistrate0 LAUIINUSMWJt1413ItLA OOOOOAIELLANT versus THE REPUBLIC 0 0 0 0 0 0 0. 0 0.00 0 0,00 0 0 0 00 6 00 0 RESPONDENT C4RGL (1) Personating a person cmployed in th P ublic SetCC Y c/s 1OC(2) of the eenal Code, Cap.16 Vol.1 of the Laws. (2)'.;Bing in:'possesjonof.prope€y supected to hav.been stolen or u•nl&'ffüll'y acquIred c/s'12(1) of the penal Code.. Cap.16Vol01 of the Laws as ammended by Act 0 No0 26/71 iten ' ' •'' S J U D G M E N T M'iKIBETE, GOJO Before Ukrewe District Court appellant was chafged with two counts: ?ersonating a Public Servant c/s 100(2) of the Penal Code and bing in possession of.propertyspected,1 - ve beE.n stolcnor unlawfully acqulrLd c/s 312(1) (a) ofee th lnale Coe0 d He was convicted of the former and acquitted of the latter 0 It is against the convictiàn and the sentence imposed that he has appealed to this Court0 Evidence was abundant that when appellant visited Ukerewe he introduced himself to several people, including Dr0 MSONGE of Kabpgo/ Nansio Government Hospital - that he, the appellant, was a Surgiál Specialist attached to Bugando Hospital at Mwanza. Believing that appellant was a qualified doctor who was in the gvernment service as claimed - Dr. Msonge as a matter of courtesy invited him to the Govern- ment Hospital, then under his charge, and allowed him to attend patients which appellant admittedly did0 It transpired later that appellant was neither a qualified doctor nor was he a public servant as claimed. He was arrested,. charged and subsequently convicted of the offence the subject of the appeal0 At his trial appellant denied he had introduced himself as a doctor attached to I3ugando Hospital0 But there was evidence of three persons who testified that appellant did in fact introduce himself as such0 The trial Maçistrate believed the prosecution witnesses and on the evidence on record I am unable to say he was wrong 0 In addition, the trial Magistrate had the advantage to see and hoar the witnesses €estify. He was therefore in a better oosition to assess their credi- bility more accurately than the appellate Court0 On appeal, appellant completely abandoned the line of defence he had adopted in the lower court. He now claims he 'is really a qualified doctor who was attached to Bugando Hosoital at the material time0 He says the evidence of Dr0 PAUL SHIKA - the Actin9 Registrar of Medical /has Practitioners and Dentists - bears him out0 H'gone even fUrther by saying that it was the same Dr0 PAUL SHIKA who postçd him to l3ugando Hospital0 Dr0 Shika's cvideoce is clear and unambiguous0 He said the name of appellant did not aipear in the records of registered Medical Practitioners and Dentists0 He went on to say the records were under his charge and that he was personally responsible for making entries thereof. He informed the Court it was his first time to see appellant Who was then in the dock0 Appellant never cross-examined Dr0 Shika about him having posted apoeliant to Bugando Hospital nor did he produce any d..'cument to show that he was a qualified doctor0 ... 2 D I am quite satisfied the conviction of appellant, was propor. He professed to be a qualifi€ ci aoctr in the ampLy of G vcrnmont - which he was not, and purported to act as a dOCOr by attending the sick in a GovernmeñtHs;:jtJ a thinq ha ouht not tc have done in the cirCumstances. His activities offended againtSetion 1.00(2) of the Penal Cx'e. His appol against cnviction is accordingly Jismissed As for sentence - the prosecution proved that appellant had one previ ;us conviction of a similar nature, fur which he was sentenced to P o.tths:.'iUupris.anment0. That was in 1961 A'13éar'cloii record during the interval sh:uld be considered in his favcur. It seems In mcrtew a theiawerbUrtismariifestly excess2V tIt isthé ráximCmunJerthb seti6n áicI the circumstances of the case do nt jstify thg. impos1 ition.pf the mxinurn(sentence ho sL.nteflce is rducod t r.a Lf 12 mnths • fldlivered at Mwanza this 31st day of August* 7 40 1iNZA M0 3 1JiKI3tTE 3lst hugust, 1974 CO JUDGE /msk0