19700626 TZHC Dar es salaam

/'A,t, ~~ Criminal Form No. 33 (Approv by the High Court • Judgment or Order on Appeal (s. 320) under Section 352 of the Criminal Procedure Code). a1y7JéiT73777 IN THE IIIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL No ...... ............... OF 1979 Original Criminal Case No ........... .......................... of 19. of . the District Court of ........ . District at ................ ............................. before ........ B . .!. ............... Esq., Resident MagistrateFiie. . ... ..... i• )1P... . (Original Accused) versus THE REPUBLIC.......................................................................................... Respondent (Original Prosecutor) CHARGE: SteaLbg fr om a notor vehicle contrary to sections 269 (e) and 265 of the lcnal Code, Cap. 18, Vol. 1 of the Laws. JUDGMENT'0IWIR )KAML Ag. J. he appellant, 3ige Senge- Mpiti, was ccnvitted of stealing from a ator ear contrary to sections 289 (0)* and 265 of the Penal Code, and sentenced to six months irnprisonr6nt by the S ingidit District Oot The complaiAant in this case was P .W 2, L. IL Vatats,, who was at the matcrial time the Ieg1or3al i'oi ice Comander for Sirigida. Na told the trial coiwt that on the 5th of Novciber 1969 he went into the Lucky Bar, leaving his car outsIde, unlocked and matterkded. In it was a bunter's torch he had bobt from P.W.5, aIi, a iocl (Iukawaflah, or the 18th of October 1989. de saw the apjilant as he, the complainint, was leaving the iavatory, and he recoiised hInt because he had seen him several times before. The conpiainant drove boise and on arrival there be discovered that his torch was no longer in the car. G P Dm 10224/12.65/60m/4up A lp 2.. The following day he reported the loss to P.Wj., Detective-Corporal Zeno, who on certain information ivent to a beerhall in the evening of the same day and found the appellant in possession of a hirnters torch which answered the description the complainant bad given to him. The appellant refused to say anything when asked about his possession of - the torch1 in defence the appellant made an unaffirmed statement in which he gave no explanation as to bow be came to possess such & torch, which is normally used for genie hunting. lie niereily told the court that he challenged the arresting officer to tell him how he could be sure the torch belonged to the Regional Police Commander, and told the officer he should retire to bed if he was drunk The learned State Attorney submitted that althoigh the charge was laid under sections 265 and 269 the appellant was convicted under section 312, and the learned State Attorney felt that the alternative conflation would have been all right (under section 187 of the Criminal Procedure Code) but for the fact that there was no evidence that the appellant was first detained under section 24 of the Criniinal Procedure Code, which is one of the conditions to be satisfied before a trial magistrate can properly convict under section 512. The learned State Attorney did not therefore .wiah to support the conviction. I searched the record carefully to see if in his judgment the learned resident magistrate said anything from which one could reasonably infer that he was convicting the appellant under section 312, ut iry efforts were unrewarded. The trial maistrate cicarly convicted under sections 265 and 269J He noted. thcn passing the sentence- The offence has a maximum of ? years imprisonment whidi Is Indeed the maximum sentence for a section 269 offence, whereas the maximum i prisonnient for a. section 512 offence is unspecified under that gection and therefore 2.s two years as provided for under section 35 of the Penal Gode. I must therefore, with respect, disagree with the learned &tate Attorney. - I think it is opportune for me to 3bserve, with genuine respect and a great deal of diffidence, that over a period of ,zeveral months now I have noticed the disquieting tendency of some learned State Attorneys to be, or to appear to be, unduly , inhibited by the brief notes Judges make on admitting cases for appeal. These notes are useful in that they give an indication of the impression a Judge has formed on a first reading of the record and the petition of appeal Such notes indicate one possible angle from wnich the appeal. can be lcoked at, but they are not meant to prejudge the issues or to limit the leained State Attomeys horizon of thoight. In the instant case the learned Judge who admitted the • appeal noted that : - uAlthough appellant was charged with fin offence of stealing from a motor vehicle c/s 269 Wand 265 Penal Code it appears the magistrate was perhaps conviettrg him under the provisions of section 312 Penal Code - thOugh not in ecpress terms. Section 187 Criminal krocedurc Code applicable in this case?" I an sure that the learned Judge did not intend to confine the learned State Attorney to only that possible angle, and I have no doubt that the learned Judge was anxious, as I am, that in such matters this Court should always be afforded the opporthnity of hearing, and availing 4itself of the benefit of, learned argument This appeal must succeed, but for a different reason. it must succeed because in his judgment the learned resident magistrate observed tAlthough I am not quite satisfied as to the identity of. the torch * In my view the whole case hinged on the question of idiitity, especially so in view of the fact that the complainant did not obtain from the du.kawailah receipt for the purchase of his torch until after it had been allegedly stolen. As the magistrate was not sure that the torch had been satisfactorily identified, he shonid not have convicted the appellant. Apart from the remark quoted above, the sentence the trial magistrate imposed was perhaps another indication that he was not quite satisfied with the evidence adduced because, after observing that the offence attracted a maximum imprisonment of seven years, and even though the appellant had seven previous convictions, the magistrate sentenced the appellant to only six months, and this, "in order to deter others to commit the same offence and also to correct the accused." For thb reasons already indicated, I quash the conviction and set aside the sentence. The trial magistrate made no order regarding the torôb I order that it should be returned to the appellant, to whom it has not been proved not to belong. Delivered in Court at Par es Salaam this 26th day of. June, 1970. • (Sgd.) L S LMAKAME 0 AOTBG aut.