Bubu s/o Bubu vs Republic (Criminal Appeal No. 32 of 1971) [1971] TZHC 109 (14 May 1971)

.ft I N THE i1GH OOUrT OF ANIANI1 AT ARU$ APPELLATE JURI3DXCflON CR1ENAL APPEAL NO. 32 OF 1971 Of THE C--- /-(o DIS9ITC C&T5RT 0 1CXLIMANJARO DI$TEUC? AT 7tVRI 3efore i.LL4. Meta, Esq., 1eaident NaCiøtrMe BIThU s/o BUBU 0 kW1;rLI s/o BASWEIS, i... . ...... PELUNT/ACC'W3BID versus TIU REPTj1,iC CMRG: Stealing from person of another contrary to Eeoton 269 a) and 265 of the Poa1 code Cap. 164 LJ L P C II T I3L 1 3. - The appellant was conviotei of atealing from the person of anøthr contary to nedtions 269 (a) and 265 of, the Penal Code and aentenoed to 8 monthe imprinrnent. This is zui appeal againct conviction nd entenoe. The mplainant's evidence was that he Eu1d 141 wife cae to Mosbi town and were going a1cn zkt street at 9,00 on the '23rd Tu1y, 1970. The appellant came up and held his body pretending that he needed help; he as nhewn t e police cjta&ion ftjid thee$eri he ptit hie hand in the complainantb coat poc'ket and took out fo&r Sha. 100/- in Cenya curxenOy. The appell4ht pretondd to be dumb but was smaktly dreesed. The complainant did not see him again. This was all the evidence aainst the appellant. It does net seem credible n. that the compleinunt ;eemd to hae onc nothing. lie did not chase the appellant or raise an aLrm nd ths s in iarket street, wh.ch is a busy street at 9.00 a.m. t ere is no saggesUon that he tade a rCport to the police. As to the credibility, of ,te complunant the learned trail'maitrate misdirected himself on the facts when be said that the cemplainant ended! his testimony by t11in th Court that he tried to øhase the &.peliant but did not find him where upGn, he decided to go and x make a report to the police. I can find nothi of. ti&5 in the notes of evidence. it was the first time that he had met theappellant and nothing was said as to how he Identified kim. 10n, thin 16,ttar,jpointf th-6 ovidence of the oonstable vho charged him is relevajati tà 1 am a District Constablei Moshi on 6/8/70 at 3.30 1 wz at the police taticn. 1 saw the accused there lie ws brought thore by ta tic police.. I put him in the iock-up. Later wt got information t at he was required for the :reeent eftenoe. We went to check hie house and found Shs. 424/-'. There was nothin to connect the apeflamt with the alleged offence. It bizgt to his attention two weea after the date on which it was suppOsed to have been eomcited. Apart from the general weakness of the oaae the appeliant is entitled to succeed on the question o isek of idcntiui-' cation alone. • It will not be necessary to go into the other ground of appeal but I boa1d comment t at the question of the appsllcint n being deaf und dwnb was investigated by the court and It was found that this was not true.. It may have been the better coarse to at medical testimony hut I cannot says ibat the magi1ite was wrong. • I will allow the appeal, quash the conviction and sentene. sd order the apellant'a immediate release. The Ths. 424/- which was put in a an exhibit mast be returned to him. Ia Delivered in Court at Arusha I/ day of Jane, 1971- (o.x. BRAMBL1i) JIJ D G jem

IN THE HIG. COURT OF TANZIANIA AT ARUSHA 1PP1iLL/TE JURISDICTION CRiMINAL APPEAL NO. 35 OF 1971 ORIGINAL CRIMINAL CASE NO. 321 OF 1970 OF THE DISTRICT COURT OF PARE DISTRICT AT SAME Before C.H. Masmati, Esq., District Magistrate EUSSINa/o ..APPELLANT/ACCUSED vera uS THE REPUBLIC ....... .. .•...... ...... ............... . RESPONDENT/PROSECUROR CHARGE: Injuring animals contrary to section 225 of the Penal Code Cap.16. JUD1ENT 1(WIKIMA, AG. J. = The appellant pleaded guilty to te charge of injuring a donkey. He was convicted and sentenced to fifteen months imprison• $ ment. This was on 2 24th November 1 1970. When this appeal was admitted, it was remarked that the sentenoe was manifestly excessive and that "fifteen months for injuring a donkey is rather cruel," The Injury to the donkey was a broken leg. The fracture was caused by the stick which the appellant used to hit the donkey. The reason why such a stiff se tenceat was imposed was because "the attack was anoalled for.". With respect to the learned District Magistrate this offence was not of a tpe that calls for deterrence. There was no likelihood of its being repeated since the culprit would derive no benefit from it. It was the sort of offence that involved no moral turpitude on the part of the culprit. 1 do not think that the heavy sentence x4ould reform the appellant as he did not need any reformation for in j uringo a donkey. This was what has popularly come to be known as "a silly offence." For these reasons I will set aside the senience imposed by the learned District Magistratet in substitation therec.I do hereby order that the appellant be sentenced to such term of imprisonment as will result in his immediate release. Arasba 14/5/7]. (N.H.A. IWIIaMA) A G. U i).O ,E jem