19710115 TZHC Mwanza2

+/cJhi IN THb ELGH COURT OF TANZANIA AT hWANZA ' Appell ~ ,tc Jun echo ti on CRL:.iINAL APPEAL NO 419 OP 1970. (OniçLnal Criminal Case No. 320 of 1969 61 the chstrict court of Nzoga before J. L. Mwalusanya Esq., resident magistrate). Ai:iDLsa s/o I.•TOpyA . , , . .LIPELLANT (o1iGI1IL ACCUSED) 14 versus Ti-E REIUBLIC ...... . ........ .RSPONDEiTT(ORIGIUAL PEOSECUTOR) 01-lARGE:- Stealing by person employed in public service 10023Tand 215 of the Penal Code. JUDG-MENT EL-KINDY, Ag.J. ES 'S The appellant, Anderson L'Iatonya, was charged with one count of fraudulent false accounting contrary to section 317(c) of the Penal Code, mad four counts of s -boding by a person employed in tlie.public service contrcoy to sections 270 and 265 of the Penal Code, Cap16, but he was acquitted of tlie charge of fraudulent false accounting and of stealing a sun of .10/1 in the second count. He was convicted in counts 3 1 4 and 0 On the third count, he was sentenced to 6 months, imprisonment. On the fourth count, he was sentenced to 2 years and twenty-four strokes, and on the fifth count, he was sentenced to 6 months. The terms of inpnisonucnb were ordered to be served concurrently. No order for d coupenation w&Ei m a S y, although the total anount allegeôly stolen was,5.367/-5 but the learned agistrcto ordered that the modunt of 214537/- alleged to hc.ve been reftindc' by the appc1l!mt to remain with the District Council. The appellant is now appealing against his convictions and sentenees The appellant was employed by the District Council, at Ezega, as a cashier. On the 22nd July 1969, the treasurer of the Council (5:.2),. checked the appcllmat t s accounts, and disc ovored that a sun of 1.1170/- Yi) was collected from receipts running from 2201 to 2291 inc1usiv5. Acdording to the treasurer, the appellant informed him that it was Salun, the appellant t s assistant, who had collected this sum f uoney Salum (P.V'.6) anitted that he the one who had collected the money, but he alleged that he handed ov e r this money to the appollant4 However, as there w a s no formal way of showing that the appellant received the money, the learned magistrate was not satisfied- that it was Safe to accept the oral evidence of Salum without any support The learned mcgistra'te treated Sdui: as an accomplice, and the learned State Attorney argued that the learned aiagistrc.t was not justified in treating Selum as an accomplice Personally I thifl_k it is an arguable point, and I sec no reason to consider this in this appeal since the Republic has not appealed q'ginst the acuittnl on the two counts. The treasurer also found that the appellant omitted to enter the cziount collected in the cash books (Exhibit 8). The appellant informed I * . .2 the treasurer that it vias not his duty to do this, and. tii- t it was the duty oi the person who had collected the nancy. The le alod magistrate held that the appellant was not guilty as it was not proved heyofld reasonable doubt that the appellant had received the money in the first place. The sane treasurer fcund discrepancies in respect of three payment vouchers (Exhibits 3, 4 and 5) ; in which the Council was alleged to have paid for services rendered by a labourer and for telephone and water bills. According to the treasurer, in respect-of Exhibit 3 1 the appellant adni.ttod that he had misappropriated thc money. That the appellant fetched. 30/- to him from hi house. The voucher Exhibit 3 purported to show that the persons named therein had beonpni.the amounts stated thereon when in fact only one person was paid h.3O/- The rest were not paid. In respect of this charge, the appellant changed his mind during the trial and said that he did not know ether in Exhibits 3 and 4 money was paid out not and yet he agreed before the treasurer that the oncy was not paid out end went fur - ther end refunded the balance of S030/- In his petition aC appeal he agucd.that the evidence was too thin-to justify his conviction on this count. Having examined the evidence, I an satisfied tl_iet there is enough evidence to show that only one of the three persons named in the voucher was paid. The other two were not paift And the fact that the appellant refundod the .30/ from his house ahowed that he had Liisappropniated the frnds. Besides that he aciuitted tmct lie had nisappropriated the 30/-. The refund of the S,30/- at that stcge did - not mean that the original taking was not unlawful. His appeal, therefore, on this count fails - I On the telephone bill of .298/-, the appell mt again prepared a payment voucher in favour of the postmaster, Nzega (Exhibit 4), but there was no rece-pt from the post-master that this iaoney was received by hif. The post-master (p.w. 4) confimed that he was not paid the money. Again the treasurer said the appellant admitted the shortq;o and asked to be given, the opportunity to refund the money end that the money was refunded The appellant did not say anything in respect of This count in his petition of appeal. I am satisfied that there was adecuate evidence to justify his conviction in this count as well. And in respect of the water bill of 2.39/-, the appellant prepared payment voucher,. Exhibit 5, but there is no signature of the recipient on this voucher. And the clerk responsible for receiving cash. at the Inteanal Revanue Of'ice said that IiLo amount specified on Exhibit-5 was not received by huia, and that if he had received the money, he would have si(ed1 in the voucher at the space provided. And according to the treasurer, tho appellant admitted that he did not pay the money and he 4 . . .3 refunded the money to him Later. Again thc appellant did. not contest his conviction on this count. In the result, the appeals c p, inst convictions are hereby diszaissoc... ~ As I have already stated, the learned magistrate imposed sentences loss than the.Lth4uun in rspect of 3rd and 5th counts in which the amount j stolen were $.30/- anal 39/— respectively because he found special circun- stances ehisted as the accused has a lon record for 10 years" end a nuifoor of dependents, but he passed the nininun sentence in respect of th: 4th caint Special circumstances me ens circunstares relating to the. coamission of the offence and to the person who committed the offence. a With due respect, the fact that the appella nt had ten yers 0± clen a record isnot special circumstance to the commission of offence and to the appollant" The lernecl magistrate iyas correct In finding thct the amounts in ech count were less than s.100/- anu that the appeUan \ias a first offender, th a t he, erred vQhen he held tht the clean record of the appelleaii amounted to special circunstances Nor do I think that the fact that the ennollent had ,many dependents — six children, five of them are in school and one wife — is special. If this is accepted it will load to undue advantages taken of this provision vthen in fact circur.istacos envisaged arc those peculiar to the case. In respect ccC the fourth count, the learned magistrate was right in imposing the statutory minimum sentence. In the result, the sentences on counts 3 end 5 are hereby set aside and thereon imposed sentences of two years on each count to be eci-veci concurrently with the sentence of two years imposed on count 4 The statutory corporal punishment remains As for the order imposed, i.e. the 3'1539/- jointly rxifunded by the appellant and one alin to the District Council to remain v1i.tli the Council the Court had no power to make this order' The court can only make order where the evidence showed that the Council has suffered financial loss. In this case, the Council had already fully recovered the money from the appellant end from S1iu. Therefore there was no need for any order to 0. be made in the form it was made. As a result, this Order is hereby IomdUy set aside. O1DER:- Appeal against conction disnied, sentences voxied and order sot aside Delivered in Court at Nwonza on the 15th January, 1971. (z. N. El-iCdy) A. JUX 15/1/71. Kalunga, State Attorney for Rèpublic Accused absent, unroprescnted .---------.--