R. v. Baranzina Crim. Rev. 49-M-70; 17/2/71; El – Kindy Ag. J.

 

R. v. Baranzina Crim. Rev. 49-M-70; 17/2/71; El – Kindy Ag. J.

The accused was charged with abduction of a girl under sixteen, and for stealing by agent c/ss 134 and 273(b) of the Penal Code, cap. 16 The facts, which the accused accepted were to the effect that the accused was traveling from Kondoa to Kigoma with the complainant and his daughter aged about 12 years. At Tabora, the complainant left for Igoweko leaving his daughter in the custody of the accused that was also entrusted with the sum of Shs. 60/- for safe custody. On the complainant’s return he found neither the accused nor his daughter. Sometime later the accused was found a Tabora Railway Station with the complainant’s daughter and was arrested. The accused was unable to produce the Shs. 600/-. The learned State Attorney argued that the conviction on abduction could not stand since the facts did not sufficiently disclose that the girl’s father did not permit the accused to take the girl out of Tabora without his consent as required by s. 134 of the Penal code. It transpired that on the third count the accused was given a heavier sentence because he had a similar conviction in the past but he was not given an opportunity to accept or deny the alleged previous conviction.

            Held: (1) “There is no doubt that this provision aims at the protection of unmarried girls who are under the age of sixteen years from being taken away from the custody of their guardian against the will of such guardian. It is, therefore necessary to allege in the facts, where there is a plea of guilty, that the taking of such a girl has been against the will of the guardian. In this case, the girl was entrusted to the care of the accused at the time when the father left for Igoweko and therefore it cannot be said that in the interim period the accused was not the guardian of the girl. Secondly, and here I agree with the learned state Attorney, there was no indication that to take the girl out of Tabora to Ndala, as it transpired, was against to will of the father, if the father could be said to have remained the person who was in charge of the girl Adija although the physical charge or care remained with the accused. For these reasons therefore, it cannot be said that the facts as given sufficiently disclosed the offence for which the accused was convicted.” (2) “However, the facts in respect of theft of Shs. 600/- sufficiently disclosed the offence of theft by agent. I see no reason to interfere with the conviction on this count.” (3) “However, as the learned state attorney rightly pointed out, the accused was not given the opportunity to accept or deny the alleged previous conviction. It is hereby pointed out for benefit of the learned magistrate that where it is alleged that the accuses should be given the opportunity to accept or deny the alleged previous conviction (see ASUMANI S/O MATALA 1968 H. C. D. 427). And where the accused denied such conviction, the prosecution should be given the opportunity to prove the alleged previous conviction, if they so wish, by adducing evidence in support of the allegation. Where the previous conviction is denied and the prosecution does not seek to prove it the accused   treated as a first offender. In this case, this issue is held in favour of the accused, and I find that he was a first offender.” (4) Conviction on first count quashed and set aside.