Senge v. R. Crim. App. 82-D-70; 26/6/70; Makame, Ag. J.

Senge v. R. Crim. App. 82-D-70; 26/6/70; Makame, Ag. J.

The appellant was convicted of stealing from a motor car c/s 269(c) and 265 of the Penal Code and sentenced to six month’s imprisonment. The complainant in this case was at the material time the Regional Commander for Singida. He told the trial court that on the 5^th of November, 1979 he went into the Lucky Bar, leaving his

oar outside, unlocked and unattended. In it was a hunter’s torch he had bough from one Walji, on the 18^th of October, 1969. He saw the appellant as he the complainant was leaving the lavatory, and he recognised him because he had seen him several times before. The complainant drove home and on arrival there he discovered that his torch was no longer in the car. The following day he reported the loss to Detective-Corporal Zeno, who went to a beer-hall in the evening of the same day and found the appellant in possession of a hunter’s torch which answered the description the complainant had given to him. The appellant refused to say anything when asked about his possession of the torch. In defence the appellant make an unaffirmed statement in which he gave no explanation as to how he came to possess such a torch, which is normally used for game hunting. He merely 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. The State attorney did not support the conviction because he submitted that although the charge was laid under sections 265 and 269 the appellant was convicted under section 312, and the State Attorney felt that the alternative conviction 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 Criminal Procedure Code, which is one of the conditions to be satisfied before a trial magistrate can properly convict under section 312. I searched the record

            Held: (1) “The trial magistrate clearly convicted the accused under sections 265 and 269. he noted when passing the sentence:- “The offence has a maximum of 7 years’ imprisonment” which is indeed the maximum sentence for a section 269 offence, whereas the maximum imprisonment for a section 312 offence is unspecified under that section and therefore is two years as provided for under section 35 of the Penal Code. I must therefore, with respect, disagree with the learned State attorney”. (2) “I think it is opportune for me to observe, with genuine respect and that 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 he record and the petition of appeal. Such notes indicate one possible angle from which the appeal can be locked at, but they are not meant to prejudge the issues or to limit the learned State attorney’s horizon of thought.” (3) “This appeal must succeed, but for a different reason. It must succeed because in his judgment the learned resident observed “Although I am not quite satisfied as to the identity of the torch …..” in my view the whole case hinged on the question of identity, especially so in view of the fact that the complainant did not obtain from the dukallah a receipt for he purchase of this torch until after it had been allegedly stolen. As the magistrate was not sure that the torch had been satisfactorily identified, he should not have convicted the appellant”.

4. Conviction quashed, sentence set aside. Torch returned to the appellant.