REPUBLIC v ATHANASIO MWAGILO 1985 TLR 187 (HC)

REPUBLIC v ATHANASIO MWAGILO 1985 TLR 187 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

December 5, 1981

CRIMINAL REVISION 1 OF 1981

Flynote

Criminal Practice and Procedure - Alternative verdicts - Verdicts alternative to

burglary - D Whether neglect of duty by a watchman is a kindred offence to

housebreaking - Criminal Procedure Code s. 186 [now S.305 of the Criminal

Procedure Act, 1985]

-Headnote

The accused was a night watchman at a school and he was charged with breaking into

E the school building and stealing therefrom, contrary to s. 296(1) of the Penal Code.

The trial court acquitted him of that offence but purporting to act under s.186 of the

Criminal Procedure Code [now s. 305 of the Criminal Procedure Act, 1985],

convicted him of neglect of public duty, an offence under s. 121 of the Penal Code. F

Held: The kindred offences of which a person charged with burglary or

housebreaking may be convicted under s. 186 of the Criminal Procedure Code are

those offences under one of the sections 294 to 298 of the Penal Code; neglect of

public duty is not an G offence kindred to burglary or housebreaking and it is not

one of those mentioned under s.186 of the Criminal Procedure Code;

Case Information

Order accordingly. H

No Cases referred to.

Judgment

Sisya J.: On 2nd December, 1981, I ordered the immediate release of the accused

person from prison, unless, of course, he was being held on some I other lawful

charge. I reserved my reasons for so doing. I now proceed to give them.

1985 TLR p188

SISYA J

The accused, a night watchman at Mkonje Primary School, Handeni District, was A

charged with the offence of breaking into a school building, the very one which he

was supposed to guard, and stealing therefrom various articles including stationery,

building materials and sewing machines, all valued at Shs.9,480/=, property of the said

Mkonje Primary School. This is an offence under section 296 (1) of the Penal Code.

B

After a full trial the learned trial Magistrate found him not guilty of the offence

charged and proceeded to acquit him of that offence. However, purporting to act

under section 186 of the Criminal Procedure Code the learned trial Magistrate found

him guilty of an C offence under section 121 of the Penal Code and proceeded to

convict him of that offence and sentenced him to two years imprisonment.

For the benefit of the learned trial Magistrate section 186 of the Criminal Procedure

Code may conveniently be reproduced. It reads: D

186. When a person is charged with an offence under one of sections 294 to

298 of the Penal Code and the Court is of the opinion that he is not guilty of that

offence but that he is guilty of any other offence under another of the said sections,

he may be convicted of that other offence although he was not charged with it. E

It goes without saying that section 122 of the Penal Code is not" another of the said

sections", i.e. ss. 294 to 298 of the Penal Code. Putting it differently the purpose of

section 186 of the Criminal Procedure Code is to make provision for a person charged

F with the offence of burglary or any other offence under sections 294 to 298, but

found not guilty of the offence charged to be convicted of a kindred offence under

any of these same sections, 294 to 298. Needless to say, there is nothing kindred in

the offences of breaking into a building and committing a felony therein and neglect

of official duty G contrary to section 121 of the Penal Code. By acting as if there

was, all the same, the learned trial Magistrate was clearly wrong. The conviction

could not, therefore, stand and that is why the same was quashed. Since nothing will

come out of nothing, the sentence that was purported to have been passed thereon

too could not stand. The H same thus is accordingly set aside. These are the reasons.

I Order accordingly.

1985 TLR 189

A