nestory kawingo vs republic 1980 tzhc 7 14 november 1980

Hi TOE. HIGH COUK& 'BAH&ilJIA AT MBEYA APPELLATE JURISDICTION CRIMINAL APPEAL NO, llfi OF 1900 (ORIGINAL CRIMINAL CASE NO, ?7 OP 1977 OP THE DISTRICT COURT OP SUMB£WANG/L DISTRICT AT SUMBAWANGA), NESTORY S/0 KAWINGO ........ APPELLANT versus THE REPUBLIC ****♦— ...... .......... RESPONDENT J U D G M E N T SAMATTA % Jf# • This is an appeal from a decision of tha district court of Suribawanga district whereby the appellant was convicted of storebreakingj txmizcaxy 'to s. 296(1 ) of the Penal Coda, and -was sentenced to a tern of three- yeas©* iiapcclsannent. 1. r Mr .Teemba, counsel for the Republic, says that the lower courts decision is sound, I respectfully agree* There was no dispute at the trial over the fc.ct 'that on the night of 27/28-th November, 1976, the store of ono Salvatory Msangawale was broken into and several bags of grain were stolen therefrom. According to fWj5, Berta d/o Kilmga, on the following norning the appellant tried to sell to her rsone fingermillet which was in a gunny bag. The witness had no money. The appellant left the bag at her house, promising that he would collect it later. He did not keep his promise. Instead, he disappeared from the village. He was arrested after several months had passed. The appellant denied having taken any part in the crime he was charged with. He claimed that on November 30, 1976}he left for a place called Kapozof he went there in connection with some business. He called two witnesses, one 'Cawingo Mleli and one John Mwanalinae* The evidence of the two witnesses tended to lend weight to the prosecution case* Kawingo said* inter alia ( that the appellant escaped from, the village and that that event %ook place on November 29, 1976. The witness also testified to the effect that in November 1976 the appellant owned neither maize nor fingemillet* John M!*aaa34n&t said, among other things; "After an allegation that accd, had stolen the fingermillet he escaped from the village," The learned trial magistrate analysed the evidence before him, and at the end of that exercise he w as satisfied tha% t&e. prosecutor had proved his case, I think that finding was justified* According to his own witness, the appellant had no fingermillet in November 1976, and yet on November 28, 1976 he, the appellant, was in possession of some fingermillet which he tried to dispose of by selling it to Berta d/o Kilenga, This attempted- sale occurred only a couple .jof?hoj^rs ^af^ter Salvatory Msangawale*s fingermillet had b sen stolen. The appellant left %ie-fingermillet'at Berta* Kilenga, promising to come and collect it later. He did not go back to the witness1 house. The learned trial magistrate re jected^theVJlppellanVs Kapozo story. Instead,- he accepted the ptosecution^s story that the appellant had escaped from the* village, X can see no reason or ground to fault that finding. The finding was partly based on the "*r- evidence of the appellant's own witnesses-. Like, the learned-­ trial magistrate, I am of the view that the totality of the evidence demonstrated the appellant’s guilt beyond reasonable doubt, I would dismiss the appeal against conviction, » " :» The appeal against sentence can, I think, be disposed of _ fit • ■ in two sentenoes, ’The sentence the' appellant has complained against is tho, rWrHnum sentence prescribed by laws see s. 4(3-) of the Mininun Sentences Act, 1972. It cannot- be reduced by any court of law. Before parting with this case I desire to say one or two things. The learned trial magistrate appears to think that the words "arrest" and "seize" are synonymous. That is not correct* It is a wrong use of the word "arrsst" to say, for examples "A police constable yesterday arrested a bundle of clothes." What the constable must have done is to seize the bundle. That is one thing. The second thing I wish to say is that the citation of s. 265 the Penal Code to the which was laid at the appellants door was superfluous. Section 296(1 ) of the Penal Code creates a composite offence and* therefore, the citation of that section is enough. I hope these two observations will be useful -to--the learned trial magistrate'. * ‘ The appeal stands dismissed in its entirety. - Delivered"' this i4tlT day of Novonber, 198b, in the presence of'* JUDGE.