Mwandihi v. R. Crim. App. 103-D-71; E.A.C.A. 27/10/70; Duffus P. Lutta & Mustafa JJ. A

 

Mwandihi v. R. Crim. App. 103-D-71; E.A.C.A. 27/10/70; Duffus P. Lutta & Mustafa JJ. A

The appellant was convicted of the offence of stealing c/s 265 of the Penal Code and was sentenced to two years imprisonment. His appeal to the High Court was summarily dismissed and there was included the sentence of twenty four strokes. The facts as found by the magistrate were that the appellant was carrying out repairs to a refrigerator in the stores of the Tanga Consumers’ Co-operative Society on 21^st August, 1970, and at about 4.00 p.m. when he left to go home, the store-keeper, who had put two large tins of ‘Blue Band ‘Margarine on the counter of the store with the intention of trapping the appellant, followed and arrested him at a distance of 3 yards from the store, and found the two tins in his possession. The appellant said that he had bought the tins. Whilst the police was being called he escaped. The storekeeper reported the matter to the manager of the said Society. Shortly the appellant appeared and showed them a receipt and alleged that he had bought the two tins from a shop. The matter was reported to the police who went to check at the alleged shop. The owner of the shop stated that the appellant bought two big tins of ‘Blue Band’ Margarine and two tins of beef from his shop at about 5.00 p.m. The police constable the manager, storekeeper, and the appellant went to the latter’s house where a search was made. They found and seized three large size ‘Colgate’ tubes and 4 tins of margarine behind the appellant’s photographs, 33 packets of ‘Nacet’ razor blades, 23 table knives under the carpet, 2 packets of steel wool under the cupboard, and 2 dozen match boxes. The appellant’s defence, which the magistrate rejected, was that all these articles were bought by him. In the Court of Appeal it was argued on his behalf that there was no identification of the allegedly stolen articles and therefore conviction could not be supported. The following authorities were cited in support of this argument: Bawari s/o Abedi v. R 1967 H.C.D. Case No. 11, Henry Geruasi v. R. 1971 H.C.D. Case No. 129, and R. v. Edwadi s/o Sylvester 1970 H.C.D. Case No. 130. It was further submitted that the prosecution failed to prove beyond reasonable doubt that the appellant stole the articles in question.

            Held: (Lutta J. A.) (1) “The evidence is that these goods were found missing from the complainant’s store. These facts and circumstances lead irresistibly to the conclusion that the appellant stole the articles in question. We are therefore satisfied that      the appellant was rightly convicted.” (2) “The learned judge stated in his order that the appellant was sentenced to two years imprisonment and twenty-four strokes under the Minimum Sentences Act. The magistrate found that the appellant was 48 years old and did not therefore impose the statutory twenty-four strokes. We accordingly set aside the sentence of twenty-four strokes.” (3)”We would add one comment. All the articles were included in one charge although the evidence in this case shows that the articles in question were taken from the store at different periods and thus more than one offence was committed. We think that the charge is duplex and that the proper course should have been to make each taking the subject of a separate charge. (See. R. v. Bally Singh 37 Cr. App. R. 28). We are satisfied, however, that in this case no failure of justice was occasioned by the duplicity and we would apply the provisions of section 346 of the Criminal Procedure Code. For these reasons we accordingly dismiss the appeal.”