Mfungwa v. R., Crim. App. 659-D-70; 18/11/70; Makame, J.

 

Mfungwa v. R., Crim. App. 659-D-70; 18/11/70; Makame, J.

The appellant was charged on two separate counts of stealing books belonging to the British Council and the Tanganyika Library Service. In her judgment the learned magistrate wrote, “I discharge you absolutely insofar as the offence of stealing the said books is concerned,” but went on to record, “this court is empowered to convict the accused with another offence, that of being found in possession of stolen property or being in possession of property suspected to have been stolen or unlawfully obtained under section 312”, and later still, ‘I find the accused guilty of being in possession of stolen property or property suspected to have been stolen or unlawfully obtained contrary to section 312.”

            Held: (1) “The learned Resident Magistrate seemed oblivious of the fact that two counts had been preferred against the appellant”. (2) “Section 312 does not cover being in possession of stolen property is the offence of receiving or retaining any chattel etc. knowing or having reason to believe the same to have been feloniously stolen etc. contrary to section 311 of offence, she should have made up her mind that she was finding the appellant guilty under section 311 of the Penal Code. It cannot do to find him guilty under section 311 and/or section 312”. (3)”If she was finding him guilty under section 312, the chief objections against this course would be:- i. 312, the chief objections against this course would be:- i. the various conditions to be complied with before one can make a finding of guilty under section 312 were not satisfied. 11. There is a long chain of authorities forbidding a finding of guilty under section 312 of the Penal Code where the property is known, as the learned Resident Magistrate in the present case found, to have been stolen”. (4) “In fact there was no conviction. The learned Resident Magistrate sentenced the appellant without convicting him. Section 210 of the Criminal Procedure Code clearly requires that the court shall convict the accused before passing sentence upon him or making an order against him.” (5)”Proceedings before the magistrate declared nullity. Sentence set aside. Retrial before another magistrate ordered.