19711108 TZCA Dar es Salaam

E1m couRr OF ZANXA AT DAR LS SALW Iligh Court CrIminal Appeal No. 220 of 1971 Original Criminal Caáe 1o. 100 of 1970 of the DistrIct Court of Sumbawanga District at Sumbawanga beto'e; B.W. Magabe, lsq.., District !!egintat. AA$PAZIU$ 1ALfl& •.,.,.....,.,.,....,.........,...... APP1LLANI versus TIM BBI'IThLIC •.,,...,.....,.....,.,,,......,.s.....,... RSP0NDE!T C&i: Stealing by parson employ2d in public service c/s 265 and 270 of the enal C00 *0 w JUDMN ONTIiYK . The appellant, a court clerk of iCasanga Primary Court, was jointly charged with a court messenger, Isaac Machi, with btealing by persons in the public service. The partioulars of offence were that they stole She.774/—, the property of the Government of Tanzania, whiob came to them by virtue of their employment. The charge against the court messenger was later withdrawn. The facts of the case were that the appellant as a court clerk had the duty to maintain books of account, collect fines, court fees, deposits and other revenue accruing to the court, and to keep monies so collected in safe custody. The appellant was acoused of missppropriating Shs.774/—, part of the monies which be oølieøted. It vat not in dispute that the appellant collected this amount but he denied that he etole it. He stated that be left the money in a cupboard in the office, access to which could be gained by the court meseener who had the duplicate key. He further stated that on the 16th 3u1y 1970, the day the prosecution alleged that he stole the money, be had gone to phone the District Magistrate and left the office in charge of the court messenger and when he returned he discovered that the money was missing. The line of his defence was to show that it was the messenger who stole the money or at least he had the gpportunity to steal the money, create doubts as to the appellant's guilt. The isarned magistrate, bearing this in mind, wrote a closely reasoned judgment which, in my view, was sound* Ve reviewed the evidencü and came to the conclusion that the prosecution had proved beyond reasonable doubt that it was the 4ppellart who stole the money. It was clearly established by the prosecution that it was the messenger who went to phone and, who in fact phoned the district magistrate and not the appellant. It was the appellant therefore who remained behind in the office and not the messenger. ?irially, the magistrate held and quite rightly in my view, that the ape11ant deliberately left clueS in an attempt to frame the messenger. In this appeal the appellant has attacked the judgment of the lower court and alleged in his grounds of appeal that lie was . .. 2. not allowed to call hio witnesses and also alleged that there was diorepanoy between the judgment and the evidence in the case. I find no merit in these grounds of appeal. Under section 206 of the CrimInal Procedure Code when a prima facie case has been made out egaint an accused person.his right to give evIdenoe or not or to make unsorn statsment is explained to him and he is asked bther he has any witness to call. At page 18 of the record the appellant was reoorde& as saying: "I will give sworn evidenaeo I have got no defene witneases to call," I holi that the latest aflegation i5 an afterthought. The.e is furthermore no material isorepancy between the judgoment and.the ovidece.adduced in the case. I will therefore dismiss the appeal agñst conviction. The sentence passed on the appellant was the minimum prescribed by the Minimum Sentences Act. I will also dismIss the appeal against sentence. QtR: Appeal against ov±o±on and Sentence Is hereby dIeissedo elivered this 8th day of November, 1971. (G.c.M. oNTIflK) JUDGE.