19800908 TZHC Dar es Salaam

,> Qo IN THE HIGH COURT OF TANZANIA .A ..... LAPIN HIGH COURT CRIMINAL APPEAL No. 155 OF 1979 ORIGINAL CRIMINAL CASE NO0 15 OF 1979 OF THE DISTRICT COURT OF MOROGORO DISTRICT AT MOROGORO BEFORE A.T.C. LYANUYA, Esq Resident Nagtstrate AHMAD ASHERI . .. • • • • • APPELLNJT (ORIGINAL PICCUSED) Versus THE REPUBLIC 0 0 . . ,• • RESPONDENT ORIGINAL PROSECUTOR) • CHARGE: Stealing by Servant c/s 270 & 265 of the Penal Code. ,TUDGM-ENT BIRON,J. — The appellant was éonvicted of stealing by sevant a crankshaft, and he was sentenced to imprisonment for - three years. He is now appealing. The evidence is rather confusing, the testimonies of the witnesses could have been recorded with greater clarity; and the proceedings are further bedet±lled by the fact that the first witness Bakari Mohamedi, was treated as hostile on the ground that the evidence he was giving contradicted the statement he thade to the police ; which was produced in court. The appellant was employed by the Morogoro Town Council as a motOr vehicle mechanc working at one of itsgarages. It was . a tran1shaft established in evidence that on 26th December, 1978 which had been removed from a tractor under repa±r disappe6red0 'q.eçqo aq. ;o Uo'p.d -çlDsep eq4 4 p3u140W TJUNVE SP U9Aç5 ST 34g. ;O 9UIU aLI,4 'BLt qW3Q 49 App aules aqq Aq epui AT4U3 344 UT 4Qqq SMO4S 4.1 MQU 9W ;o .uo; UT ST pup E 4qT4x3 sp 4-7noo Ut poDnpold sM 4D14M ST44 U ppui luPTTaddP . aqj 3 IZT43 A 344 JO OU Gq4 44UA9S aqq pu p 4 _Ta)jeq 344 go 3flU5TS 311q. '4.XTS a qq fuaNpqbueq qo O4. 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The witness who claimed, that he c uld read and write, queried the appellants entry asto why he had entered the name of Bakari Mohamed, and the appellant ated that he was taking out this object art behalf of Bakari i4ohamed who was away. The evidence of the other main witness Ep..on Ringo (PW3) is much clearer, in that he expressly stated th the appellant was at the material time working on the Fire Br5ade vehicle No. STA 886, which he took out for testing, and ,hen he brough - ; it back he asked the witness to assist him in taking a crankshaft from thestore and put it in the Fire Brigade v-hicle. As the witness did not watch the appellant making the r-quisite entry in the register, he could not say vthat the apellant wrote Subsequently, when it was discovered that a cran}haft had disapieared, the witness informed his supericr ci: ricer that he had assisted the appellant in removing a cranksha:t and placing it in a Fire Brigade vehicle, which the appe.lan 'rove off with the.. drañkshaft in it, .. Although as remarked, these are the two main witnessc3, according to Mr0 Muccadam for the appellant, the only two wincsser: against 'the appellant, there is the evidence of Ramadhafli Salu::i Konengila (PW.6) who described himself as a motor vehicle mechinic also working in the same garage as the other witnesses. He testified that on the 26th December, 1978 he saw the appellant and another man Salum take a crankshaft which had been removcc from a tractor and put it in the store. And on the same day., the 26th December, 1978, he himself wrote.out a gate pass which he gave to Bakari Mohamed (Pw.1) to take an injection pump repair, and this gate pass: was produced in court as Exhibit C. I.' 4-, It shows, as testified by the witness, that Ba1r 4. Mohamed was authorised to take out a pump and nozzle and th: number of a vehicle is given as STA 888. He further statec? :hat this injection pump was brought back by the said Bak I Mohamed on the same day after having been :pai::3c here was produced a delivery order from D*esel Injectic' Imp Service to the effect that the pump was returned repai. - and this de order is dated 26th December, 1978. There is 1rLnce that Bakari Mohamed carried the injection pump on a i cle. The appellant who 1ected to ç&ve eviden oath, admi;'Y that he made an entry in the register which shoi hat Bakar. Mohamed had taken out F:.njection pump on the 26 i December.. 1978 However, he insisted tbt it was an injection pum he took out and not a crankshaft.. Vhen questioned as to the ii1imber of the vehicle shown by him as STA 888 7 he as ~ rted that ihe numbers of the vehicles -ntered in that la co.urnn rer; i to, are . i'o'- of the vehicles from which the objct tke:i ou been removed 0 However, he could not e - plain why 'e'e is an :.';::• in the register showing that in the very same mont on the 2 h D ember, 1978, a load of bricks were taken out and the number of i .e vehicle given in thelast column is SA 892 which is nnt c'.prising, as the bricks obviously were not a mechanical part of 4:he vehic:!." The appellant's evidence is obviousiy a tissue of ]Jes. As I think sufficiently demonstrated, the evidence estab:':' r the guilt of the appel:.ant beyond a shadow of doubt. With regard to t:e sentence, it is.nubmd by learned State Attorney that it is illegal in that the value of the crankshaft is given 8.500/=. And a laid down in the Minimum Sentences Act. 1972 where in the case a scheduled offence, as isthis instantonc, c . J 5- exceeds shs. 5OOO/ 1 the minimum prescribed sentence is imprisonment for five years. However, this value of sh. 8+500/= is only given in the charge sheet and in the magistrat&s order for the payment of compensation, but as submitted by Mr. Muccedam, there is a shred of evidence in the record to support such valuation. In the circumstances, I am not persuaded that it would be safe for this Court to increase the sentence to that of imprisonment for five years. / The appeal is accordifigly dismissed, and the sentence as imposed is left undisturbed. Delivered in Court at Dar es Salaam this eighth day of September, 1980. : (PH±LIP BIRON) -, - •DGE fy— 8th September, 1980 - --.- -- ,- - -. -- -.- I