19760701 TZHC Moshi

IN THE HIGH COURT OP TANZANI. - AT ARUS HA APPELLA.TE JURISDICTIOI HIGH COURT CRIMINAL APPEAL NO. 42 OF 1976 - 6 ALM'9Lnal 4iminal Case No. 1345 of 1974 of the District Court of jMoshi District at Moshi BEFORE: S. J.. KANYAMA, Esq., Resident Magistrate s - ..--..- ANK KIMATH ....................PELIJNT (Original Accuood) - Versus THEREPUBLIC ............. ... ....• RESPONDENT (Original Prose cutoi) CHARGES: Stealing by public servant - c/ss 25 and 270 of the Penal Cci.

J U D G M E N T SAIDI, C.J. I allowed this appeal when it came up for heaxthg on 10th June, 1976, and reserved my reasons which I now give. The appellant was chaged with three counts of stealing by public servant contrary to sections 270 and 265 of the Penal Code. He was at the material time a mechanic of Commworks at Majengo/Njorc. The first count alleges that on 17th September, 1974, he stole one armature and one bearing of motor vehicle ST 3218 valued at shs. 190/- the property of the Government which came into his possession on account of his employer. The second count alleges that on 9th October, 1974 9 he .stoleone control box No. 37477 of motor vehicle GT 7810 which also came into his possession on account of his ei1oyer. The third count alleges that on the 12th October, 197-r, the appellant stole one armature and dynamo and voltage regulator of tractor registration No. OW 201 9 which cane into his possession on account of his employer. At the trial the Lppellant was acquitted on the first and second counts, and was convicted on the third count and sentenced to three years imprisonnnt. He is now appealing to this Court. At the hearing of the appeal the learned State Attorney stated that he was unabl to support the conviction due to the fact that there was a co:aspicuous variance between the evidence adduced by the procecutin a the particulars of the offences charged.

Apart from th variance between the evidaace and t1 particulars of the chargs it was quite obvious that the procedun of collecting spares at orniuworks depot, Moohi, had not been followed. Spares were lways collected by All Hainisi (P.W.2) on the euthority of areuisition prpred by the heads of various sections of Cornmworks. Lfter collection All .Hanisi would distribute the spares to the incharce of the sections and this in turn would distribute them to the nechanics who were to repair the vehic les requiring repairs. All Hamisi admit ;d that the uprellont was not supposed to coll&ct the spares directly or a Lgri the requisition. Then he added that he trusted tke appellant and handed over the spares to hiixi witj i the papers - o be signed br ala incharge because he believed him as the Chairman o5l TANU in the C:rnworks depot. ..... - 2 — It must be no -tod here that it is not only in one occasion that the appellant is alleged to have received apr05 in this irregular manner. But according to the charghe cliclso three times - On the 17th September, 1974 9 9th Odtober, 1974, and 12th October, 1974. With regard to count one and count two, the learned trial magistrate's remarks at page 5 of the judgment are as follow:- "The only.thing I can say about this Court (count) is tht we are only told that accused stoic this armature and bearing on# 17/9/74, but no wher in the whole

evidence were we told how accused received these armature and bearing. We have only been toldof the spare parts accused received from Alli Hamisi on 12/10/74 but not bofoie the date. In short there is no evidere before the Court that accused receivedany spare parts for the repair of this vehicle on 17/9/74. In the absence of this evidencej I must find that the prosecution has failed to prove the first count because accused cannot be said to have stolen spare parts which he has not been hovm to have received. For this reason alone I dismiss the first count and acquit the accused of the sane. This is the sane of the 2nd count in vinich he is charged with the offence of stealing a control box No. 37477 of a motor vehicle Rag. No. GT 7810 Bedford valued at ohs. 190/— on the 9th October, 1974. In the evidence by all the four prosecution witnesses no one was able to tell' the Court that accused received this coiitzol box on 9th October, 1974. This is the most important element which should have been proved before the Court because accused could only be said to have stolen what he has received. Now how can this.Court be expected to find that accused stole something it has not been t)id he has received? As 1 have said abOve we have only beon told of the sre parts accused received on 12/10/74 and not before. Like. i:i the first count, no evidence on which a Oonvic -tion can be based for

the 2nd count. I therefore dismiss the 2nd count and acquit the accused of the offence.". Even on the third count tLP evidence was not all that clear. ' It would appear that the magistrate had believed Ali Hamisi with regard to the spares he alleged :ac gave the appellant on the last occasion, but he did not believ him with regard to the spares he was alleged to have given ir.-. the earlier occasions. I se. no good reason fc- Ali Hiisi to make a breach of the procedure v4:.ich was laid down 5u'Comrworks. Spares were collected by the indharge of seQtions, rot by mechanics. And the appellant not being one of the inchargea of the sections was not authorised to co1lec; spares. Ths added to the varia ace betwen the evidence and the particulars of the offences already rcrred to, clearly indicate that the charge in tIo third O)mt was not proved beyond all reasonab.e oubt It was 02 this atoount that I allowed the appea on the hearing datei . La-ted at Moshi thislat day of iiy, 1976. / ( (A.

CHIEF JIJSTICE