19750217 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM APPELL.ATE JURISDICTION HIGH COURT CRIMINAL APPEAL NOol87 OF 1974 ORIGINAL CRIMINAL CASE NOo R216 OF 1974

OF THE DISTRICT COURT OF DAR ES SALAAM DISTRICT

AT KIVUKONI DAR ES SALAAM Before: AoAo Msangi, Esqo, Resident Magistrate versus THE REPUBLICoooooeooooo•ooooooooo•oooRESPONDENT

I JUDGMENT MWAKIBETE, J .... Before the Dar es Salaam District Court the appel-: lant AKILINI MUSHI was charged with and convicted of Stealing s/c 265 of the Penal Codeo The particulars of the offence alleged that the appellant, on the 28th day of December, 1973 at day time at Tanzania Breweries Office in the Ilala District - Dar es Salaam Region did steal two cases of Pilsner beer valued at shsol90/- the property of M/S Tanzania Breweries Ltd~ Dar es Salaamo Briefly, it was alleged that on 28th December 1973 the appellant had gone to the Tanzania Breweries Office to buy some beer for his storeo He had gone with some 9 cases of empties for which he was alluwed shsolBO/-a He was to purchase two cases of Pilsner at shsol90/- and ' 7 cases of tusker at shso6l2/50. He was therefore supposed to pay shso(l90 + 612/50) less shs l80/- fQr the empties - that is shso622/50o 0 The transaction was worked out on a Cash Voucher by one of the Company's employees and a copy of the voucher was given to the appellanto The appellant was required to pay in accordance with the figure as shown on the Cash Vouchero On the particular Cash Voucher the amount shown was shso432/50a That was the amount the appellant paid when he was given the 2 cases of Pilsner and the 7 cases of Tusker. Later during the day the company's employee discovered that she had made an error in her calculationso She realized

that the appellant should have paid shso622/50 instead of shso432/50o Between the two figures was a difference of shs.190/- which was equal to the value of the two cases of Pi_lsnero A hunt for the appellant then begano They took him to their office and demanded shsol90/- for the two cases of Pilsner. He told them he had no money - so they phoned 2 the Police who arrested him and subsequently charged him with the offence. It is important, however, to mention that at the appellant's store the company's employees demanded a copy of the Cash Voucher issued to him and the appellant readily surrendered it to them., On the Cash youcher the figure indicating the amount of money that appellant was to pay for the beer had been altered from shs.432/50 to shs.622/50. Appellant admitted to have altered.it., According to the trial Magistrate the changing of the figure by the appellant constituted 'animus furandi'., I am unable to follow~ The figure 432/50 was undisputedly wrong. The correct figure was 622/50. Appellant admitted having written the correct figure on his copy. So, by necessary implication, he realized as at that tim~ that he had paid I less for the beer given to him. that he discovered the irregularity, ·sut when was it exactly sold the beer and spent the proceeds or before? Was it after he had I· Assuming that he had just discovered the irregularity, having long sold the beer

and spent the proceeds, when the . company's employees arrived at his premises - could appellant properly be held to have stolen the beer? I entertain grave • doubts and I wish the trial Magistrate commented on the point. Suppose immediately the appellant discovered the irregularity a.i:...:: 11;;,fc..r:e he had even thougl)t of going ahead with the sale of the unpaid .for beer - the discovery of the irregularity not- • withstanding - the company's employees arrived and took him away as I they did - what would be the basis for the allegation that the . appellant had stolen the beer? 'No one demanded the return of the beer. Whether qr not the beer was available when the company's· employees arrived is a matter of speculation. And on the evidence on record the company was only interested in money, the value of 2 cases of Pilsner, and not in the return of the unpaid for beer. I see no evidence to suggest that the. appellant had intended to deprive the company permanently of the beero In my view, the altering of the figures on no account rep- resented conversion of the beer - in the circumstances of this case. For the above reasons I am not satisfied the case against the appellant was proved beyond reasonable doubt. I would under the circumstances allow the appeal; set aside both the conviction and sentence and order that the appellant be set free forthwith unless held in connection with another matter. Dated at Dar es Salaam this 17th day ( ~'J/Oflo,(