19710526 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM Criminal Appeal No. 119 of 197 1 Original Criminal Case No. 204 of 1970 of thO District Court of 8ongea District at Songea Before: P. B. Npozi, Esq,, District Xaistrate MIBROZI MVULA &PPELLAMT Versus THE BEPtJBLIC .....................,...............,• BPONDNT CHARG1: 3tealing by agent o/s 2730) of the Penal Codø, PAT.L, AG. 3. - The appellant was convicted of stealing by an agent in the District Court of Songea and he is now appealing against the oonviotion and sentence. Mr, Pardlian, counsel for the appellant, submitted that the trial magistrate misdirected himmeif as to the issuea before him. From the evidence it is clear that this is a contraotual relation- ship between the original complainant and the appellant. Whereas the learned trial magistrate misdirected himself compitely on this point. At the most it could be a sale of gooda matter establishing contractual liabilities and duties between the parties. Whereas on the strength of the evidence this is quite contrary to the conclusions drawn by the trial magistrate. After considering certain fa.ota the trial magistrate has come to a wrong conclusion. Mr. Pardha.ñ submits that this appeal be allowed and the nontence set aside. He further submits that in the event the Court holding that this is not a contractual responsibility and if theconviction is correctly established, then the sentence is excessive.

The trial magistrate sentenced. the appellant to twelve months imprisonment and Mr. Parahan quoted authority in which the former Chief Justice, Mr. Georges, held that appellant boing a first offender a.ndXoertain other mitigating factors imprisonment should not be granted at all. Mr. Pard.han further aubmitted that the appellant is already in remand for the last four months and that this is enough punishment in itself. Learned State Attorney contested the submissions of Ir. Pardhan by saying that the facts and the evidence on record prove conclusively tbatths appellant stole the money and urged tha the appeal be diainisseçl. Going through the record of the case and the evidence it becemes clear that the learned trial lagiutrate has indeed miadireOted himself. Basically, on the evidence before him it was clearly estab1iihed that the liabilities and responsibilities between the appellant and the original complainant were of a oivil nature. The appellant admitted of having collected. 83 pieces of timber and agreed to sell them to the Co—operative Union. He agreed that he stil] o*ed certain sun ibioh he wanted to offer to the plaintiff and the only point that would determine the issue. was the payment for the remaining pieces of timber and price thereof. This eyidenoe cannot establish any offence of criminal ..... .2 • nature on the part of the appellant. The learned trial

magistrate weighed the evidence inoqrreotly and it was not proved beyond reaeonable doubt that the appellant did in fact steal the amount an charged. • I think, on the evidence as it i, it 19 most unsafe to convict the appellant. Accordingly, I allow this appeal, quash • the conviction and set aside the sentence. The appellant ekculd be released forthwith unless he is otherwise legally beldo e1ivered in Court at Par es Balaam this 26th day of May, 1 97 1 - • (r B. PA!L) AG. JUDGE