19750930 TZHC Mwanza

- IN T'TE ICH COUI T OF Ti-u7ANIA

AT NWANZA L. i2ii i,% TE JURIDCTrO1i dISH CCC cT CLINiL PEiL N00215 OF 1974 ORIGiNAL IIL CASE NO 16 JF 1974 1efore idS0.. Kabibi, Esq0, :oistrict Magistrat YUSFU s/o iJJkLLAH 1-1PCLUdT • S \rersus .•. THL Rk.UBLjL,o RESPONDENT CHkRE. Stealing from the person of adther c/s .26.9 (a) of the P&nal Code Cap0 16 2 hiN1ING, C TIY6 appellantth another person who was accuitted was cri&red with stealing from the person of anotht r contrary to section 269(a) of the Penal Code0 be was convicted and sentenced to twelve r-ionths imprisonment0 He i iow appealing aaint both corniction and sentence0 The fcts of this case are as follow0 The omp1ainant (PW01) on l5/l/71 was at the Kanama bus stand, waiting for a bus going t.o::Fwanza0 I-ic was arryinq a hand bag and he also carried a waliLt n his back trouser pock t The wallet containee, shs050/-, a - TANU card ani several recelpts bearinq his neme0 At about 8o30 Uo the bus arrived an 'ie complainant together with other neonle started to push each oter in order to be able to board thc bus0 Afté .p s:Iing..f or soT,etime he m.anape.d to embark in the bu, In which he found a sect and efter sitting down be ciecided to check in his nockets, so es to ascertain wnetn€r ever'jtbitig was in his pockets0 While ch.ciing his pockets h(-- found that he had lost his wllet, ich contained shs 560/- and he thence disembarked from • the bus in order to search

for the thief. He then saw the second 0 accused standing close to him and he suspected his movements0 Shortly afterwards the second accused. d ' isappeared.fr -rom the vicinity since the complainant ead lost his monej, he cancelled his trip to Mwanza and proceeded toa nearby bar, belonging to Julius 13trushp where he met Erasto, to whom he narrated the story of his loss and ; thenamIs Uldi (PW03). arrivedd during. their, discussion0 . After "Hamis Udi CP3) had listened to their discussion .he'.tdld them that he had seen too young men drinking very heavily in the bar • and he therforc suspected th.tthey could have been the thieves0 Hamisi e thr tc e hm (the cop.lainant) an hi car to th e police station, where he reported the matter0 They then returned to the bar, accompanied by one police officer0 When they entered the bar, .they found the appellant drinking pombe and the second accused ws....cting-. his meat0 The police officer then arrested both the ap'lThnt and the second accused and took them to the police statiorr, whera they wer questioned and searhed0 'Te appellant was found with the complainant's 'a1l'et, cont'aihi.ng shs0 120/-, the complainant's TANU membership card and various cash sale receipts, most of which bearing the complainant'.s name and a key, which the complainant alleged to be his house ey0 All these items I. -2-- were tendered in court as exhibits It may

be noted that the appellant was searched in the presence of the complainant and Hamisi Uledi (P.W02), whose evidence at the trial, supported the complainant's evidence in all the material paticulars. At the trial the appellant, who chose to give evidence on oath, denid the charge saying that on • the evening of 15/1/74 he was in Julius Brush's bar drinking beer and while there he was arrested by a police officer, who had a gun in his hands. He was told to go into a police land rover (standing outside the bar), which took him to the police station, where he was duly searched and then the police took his shs. 1201=. They also stripped his clothes off leaving him naked0 A little while later, the second accused was also brought in and searched0 He denied that the complainant's wallet was found in his pockets0 He called Daudi Masanja (D.W.2), Fares Makori (D.W.3) and Mboneko Edward (D.W,4), whose evidence supported his story q Both D.W. 2 and D.W.: 3. denied 'th't the complainant's wallet was found on the person of the appellant. In his memorandum of appeal, the appellant complained that he was not in any place near the bus stop when the alleged money was stolen and that the idarned trial magistrate failed to reach a just conclusion because he rejected the evidence of the defence witnesses and accepted that of P.W.3, a driver, who worked, in the same Division (Co-operative) with the

complainant, who was a Co-operative Officer. After perusing through the file it is clear that the appellant 'stole the complainant's money, which was in a wallet since the wallet containing the complainant's TANU card and receipts bearing the complainant's name were found in. the pocket of the appellant. The evidence of P O W.3 supported the evidence of P.W.1 and in 'fact the search took' place in his (P.W.3) presence. There is no evlJence to show thatP.W.1 and P.W.3"were wor.king'together and that P.W.1 was P.W.3's Senior Officer, so that P.W.3 would bb anxious to'plea.se PW 1' by giving faurable evidence on his behalf. Moreover,' the 'appellant did not advance any reason to shw why the complainant and the police should. conspire together to charge him with this offence, or why they should lie' in the court.- Again, there is no vidence"to' suggest that the complainant and the appellant knew each Other befoe so that they had quarrelled, hence, he (dmplainant) could haire a grudge against him. ' 'However, there i nothing in the evidence before the court which seems to indicate' that che'appelIañt had removed the wlled 'from the person of the complainant. ' Therefore, the appellant is not guilty of stealing from the peronof another but of simple theft contrary to section 265 of the Penal Code. 71 substitute'cOnviction accordingly by virtue of section 181 of the

CriminaiProcedure "Code. Therefore, the compensation order, that is.€he'appellant - should pay Shs. 440/= to the complainant is set aside0 As regards the sentence imposed, I*am very far from being 'persuaded that the imposition of a sentence of '-one year imprisonment is excessive. In the circs€anceth, with the excepton of-the cancellation n of the order ,the appeal is dismissed in its etirety. / J.C. MANNING. JUDGE .

DAR ES SALAA 30th September, 1975