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H IN THE HIGH COURT OF TANZANIA ,.ATDODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 51 OF 1973 ORIGINAL CRIMINAL CASE Np0 8 OF 1973 OF THE DISTRICT COURT OF KYELA DISTRICT AT KYELA for6M.D.Nchal1a . . .•. a , 0 p 0.0 Distrit Magistrate . . . '.. MWANAHIYANA NDICHIDL. 00 .p..o. .Ap.pellaflt (origia1 Accused) .. . \iersus THE REPUBLIC0 1. a . . Respondent .(origina1 Prosecutor) Charge Robbery c/ss 285 and 286 of the Penal Code0 JUDGMENT • CHIPETA G0 .J . . The appellant in this appeal, Mwanahiyana d/o Ndindi was charged jointly with two others before Kyela District Court of the offence of, robbery with violence c/ss 285 and 286 of the Penal Code. The learned trial magistrate convicted the 'appellant and the third accused(who hasnot appealed) of the lesser offence, of assault causing actual 1 bodily harm c/s 241 of • the Penal Code after holding that the evidence was insufficient to prove the offence of robbery with violence. The appellant was sentenced to pay a fine of shs..250/= or five (5) months imprisonment, in default of paymet0 She paid the fIne and has appealed to this Court against both conviction and sentence. When the appeal fin.aily came up for hearing, the appellant's whereabouts were not known as she had moved out of Kyela and all attempts to trace her prove1 unsuccessful. The Court, therefore, proceeded to determine The appeal on its merits. ' . My learned brother judge (Mapgano, Ago J. as he then was) indic.ted in his minute when he.dmitted the appeal on 2/10/73 that the Republic may with to cross-appeal. On 6/6/74 the Republic informed theCoür'that"theyirtended' to cross-i apeai. For reasons not'disclôsed, nocross-ap'peai was preferred. At the hearirg of this appeal; Mr. Lyimo,' learned state attorney who • ,. . appeared for the Republic, decided to abandon the idea of filing • . across-appeal. .. . . . ". 'The evidence adduced before the taI ,'court, in short, :.'was that during the evening in questin the'coiplainant, the appel.1&t, her co-accused persons, and:other people were drinking local liquor at the house of the appellant0 The appellant and • :. . (1 - 2 - the complainnt knew each other before when they were at Lake as fishmongers The appellant and the second and third accused personsstaed:on ñtil at.: aboUt midnight. At about. that time the appellant called th,comp1ainan ino her room0 As 'odn ashe entered her room, she walked out. Shortly after she retUrnCd.to the roorñ and allegedtht the complainant had hr mcney which' she had .lefton,. thebed. She then called in the second and third accused persons and raised an alarm that there was a thief in her room. Thereupon the two accused persons arid..the appellant caught the'cmpIaihant and started to assault m 'as they raised an alarm. They stripped of f his pair of long trousers and shirt 0 When people came to the sdene they found the accused persons hQlding the cothplaihant who had on only an underwear and vest. The complainant tr±ed to explain that his asaillants had ,take away his pair of lông trôUsez in 4hich'.Was:'shs. 255/=, but the appellant and her colleagues said he was a thief and that the were taking him to" police:: stãtion. The appellant put' some unknown articles in a bag which she said were the article .. .stolen by the coniplainant. In, 'spite of complainant's protests, the appellant and her colleagues led him away saying they were taking him to police station. On the way, however, they gave him his shirt and him to qo before they reached the police station. They did not give him his pair of long trousers although he asked them to returh it and the money to him. Neither the money nor the pair of long trousers 3have been recovered to—date. The appellant and the second accused elected to make n.d.iiatement, i their defence. In his defence the third accused tbii the trial court that he caught the complainant because the appellant had raised an alarm and had told him that the complainant was a thief. on this evidence the learned thstrict magistrate held that the offence of robbery had not been proved beyond reasonable doubt. be convicted the appellant and the third accused of the ..lesser bffe eof'assault causing actual bpdily harm c/s 21 of the Penal Code..": During the hearing of this appeal the learnEd state attorney submitted that there was ample evidence to prove the offence of robbery with violence, and so the learned trial magistrate ought to have convicted them as charged. The learned state attorney, however, was unable to suggest any remedy.. I 'have perused the evidence and the judgement of the learned district magistrate. Iagre: that there was evidence to 'ju€ify 'a convictin for robbery wit violence', c/s '285 and 286 of the Penal Code. i .T.he allegations of the complainant were supported by thef evldçr)ce of, eye—witnesses and the ?.F,30 Tee.were notcontroer€d'by the app1lant. Indeed, the learned district magistrate would appear to have accepted the comp1ants verion of the story 0 Having done so, it was incumbent upon him to consider the disappearance of the cornplinant's pair of long trousers. The qustion, howëver is: what is the remedy? Under S.. 19dY'j.i)... pf heCrimin.al Procedure Code, the High • Cot'Th empowered to "alter the finding" of a lower court0 This power, however, is not to be used indiscriminately. In the case of Robert s/o. Sakila V R (1967) H.C.D. n. 57 the accused was convicted of defiling a girl under the age of twelve years c/s 136(1) of the Penal Code, But the evidence disclosed that the girl was between twelve. adHhirten years of age0 The Republic then sought to have the High Court exercise its powers under. S. 319 of the Ciiminal Procedure Code0 Platt, J. held that S. 319 authorizes the High Court to "alter findings" on appeal where the error to be rectified affects only the charge itself, that where the evidence does not sustain a charge of defilement, the High Court may not alter the finding to one of rape 0 I respectfully subscribe to that interpretation of S. 319 of the Criminal Procedure Code0 By a pay of reasoning, it is my opinion that where a trial court has convicted a person of a lesser offence when the evidence discloses a more serious offence it is not open for the High Court to "alter the finding" and substitute a conviction for the more serious offence in the absence of a successful cross.-appeal. Biron, J. expressed a similar opinion in the recent case of Joseph sb Kachopa V R (Dar es Salaam Registry) High Court Criminal Appeal No0 162 of 1975 (as yet unreported) when he said, .. 11 4.00.0..as the magistrate expressly acquitted the appellant of stealing and as the Republic has not appealed from such acquittal, I fail to see how this Court can now substitute a conviction for theftZ" It is for this reason that I can only sympathise with the Republic who, at this stage, cannot be doing anything more than a postmortem. On the question of the sentence imposed by the trial magistrate for the offence on which he convicted the appellant, I am inclined to think that he erred on the side of leniency. But as pointed out earlier in this judgment, all attempts to locate the appellant have failed. So even if I were minded to enhance the sentence I would be engaging myself in a sterile exercise. For these reasons I would dismiss the appeal in its entirety. it is accordingly so ordered. , 0