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.
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