19770529 TZHC Mwanza

IN TJ.Ui IIIG;i COUT OF .PiZkdIA /I /~ .T i• 2; •JU'hISDICTI0i' ChMli&L iP ....L iJO. 32 OF 1977 (Original Criminal Case No. 401 of 1976 of the District Court. obuco•ba irt at Lukoba ) Before P. P. iioyo, - s q ., 1esi,4ent itaistrate). MOk iiaE.0 SLUM ...... • • • • . . . . . . ........• • • • • . .. . - PPJLLi.NT versus HE REPUBLIC ............see .000 • •.•.• .......0,0,0, •• RPOPDENT ChARGE: 1 Count: Stealing by person employed in the public seriice section 270 and 265 of the Penal Code. 2nd. Count: Steaiirig section 265 of the Penal Code. JUhii'JT: LUG kIiGIn, J.: The appellant vias interrupted in his t,he't dotivites at the godown of the 1htiona1 killing Corporation in BuKoba Town. i-iC had only managed to steal one bag of beans which he had loaded on a hired vehicle when the arrival of D/St. Leonard (.i) .ut an end to this activity. The appellant v1ai3 an employee of the Co rporation and on the material day, 6/5/1976, he 'oas aupervising the stacking of beans in the said godown. while this was doing on the appellant went ot and hired a land rover driven by i-Iabib 14asudi.(PW.2), telling Masudi that he had 10 bass which he wanted transported to the Lrarket place.' It was after the first bag had be an loaded that D/gt Leonard put up an appearance on information received, There was ample evidence to corioborate the uppellantts hire of Masudis vehicle. The appellant was

therefore chareU and convicted ofstealing by public servant. He was sentenced to 3 years iinJrisonment and then appealed here. There is no question as to the theft. The evidence was oc-rwhe- iming in this regard. The aepeal was in fact admitted ostensibly to consider the properiety of the charge but not the theft as such. The prosecdtion and trial court erred in charting, trying and convicting the appellant as a person employed in the public service. The defini- tion of that expression in Section 5 of the Pnal Code does not embrace employees.ofpublic orporations. The appellnt should have been charged for stealing by servant c/s 271 and 265 of the Penal Code. I am certain, nevertheless, that he-was in no way embarrassed by the error nor was there a miscar.'iaci of justice. The erticulars of offence ana the evidence left no doubt as to the offence he was facing. The error is therefore curable unuer Section 346 of the Criminal Procedure Code, considerina in particular that the offence under section 271 is not as serious as the one unaer section 270. In the event I will set asiue th conviction under section 270 and substitute a conviction under section 271. • Tiie National killing corporation whose beans were stolen is a specificu authority under section 3 (B) of the Minimum Sentenes ict 1972o It is a body corporate not established unser the Compania el Ordinance, Cap, 212. For

that reason the appellant would still be liable for sentencing under the aid ict. It is noted that he was sentenced to 3 yearsi the minimum sentence under the ciroumstances. I will leave that sentence undisturbed. . . . . ./2 -2 - Save to the vaiation or kh charge,- thi ap:eal. fails and is thily Uimiuou.' ( I - K. 3-. ;kJGI1GIi, - I hhNZi . 29/5/l9; ' ' - - - -.•. -. .: .............. ..,.. . '--........---- - .............. • . .---. ---------- . - •...-,•. (•• .,,' . •.•#• •-.. ••* , -- .4 A_.• . , . •. - A. ." ,. .-...