19810304 TZHC Tabora

- .' IN THE HIGH COURT OF TANZANIA • AT TAORA APPELLATE JURSDICTION (Tabora Pegistry), CRIMINAL APPE!L N 0 11 21979 00 21 OPiINAL CRIMiN;L CASE •15 OF. 1979 ' OF THE DISTRICT COU OF. SHINYANGA tISTRICT ' t'T' CTF\1T('A Before J. Jo Esqo R/Magistrate. NO, B0 8193 PC0 APEW YKIRYA APPELLANT THEREPUBLI..........................RESPONDENtt... 15 Ct0 CHARGE 1n by per cploycd in the Public service c/s 2.70 and 265 of the Penal Code0 •• 2ndCt.0 :. . • . . •' Stealint byper2son employed in the public service, - c/ss 2 70and 265 4 f. te Penal Code. a . JUDGNT/REASONS_FOR ORDER •' . CHIPETA,J, : • 'S , On 10th Decernber 1980 quashed the appe1lant.'s":. convic . tions, set aside, ti sentence and order of compensation. and ordered ti'e apz -t i iitccate release from custody unless ---'-' -'- -j ' reevd my reasons for doing so and the are onta2ned in this judgment. The appellazit., ,0 d anoter, who was acquitted, were jointly cI"arged 'o"i '-- ints of stealing by persons employed in he pubic ser1ce c/as 270 and 265 of the Penal COde'0 The appellant was convicted à chred and was sentenced to 36 rio-is inprisonment in resect oU the first count and to 42 months imprisonnient.inresect of the second ccun' which sentences were ordared to run concurrently. 'He then appealed to this Court against the convictions and sentences0 The prosecution's 'evidence 'was that the appellant was a police constabi.and at the material time he was staione.d at Nhunze Police Pbst where, he was Acting Officer Commanding the Station0 In November, 19771 'a tencell leader, one Simbi.ra (PW.1) was entrutedwith eIght.head ofcattle by the I I' (2) police for safe custody as the same were unclaimed property. On 7th June, 1978, the appellant collected seven out of the eight head of cattle from PW;1 so as to go and auction them becaus nobody had turned up to claim ownership of them. Out of those, the prosecution claimed, the appellant sold only three head of cattle to one Wambura for Shs.2,500/. The appellant, however, did not remit the money, to the Officer Commanding District, hereinafter referred to as O.C.D., Shinyanga District, as the appellant ought to have done. • In August, 1978% the who was one Superintendent Mwakalile (P.7) lbarnt that the appellant had sold the head of cattle but had not remited the money. he met the appellant and on asking him, the appellant said that he had sold the animals for Shs.1 1 200/, but that at that time he Only had Shs.1,000/= which he then handed to P.W.7. It is not clear he why P.W.7 did not ask the appellant where the restofthemoney wasa.n when the appellant would remit it to the O.C.D. Be that as it may, according to P.W.7,after receiving the money, he recorded the same in his safe resister, but issued no receipt in respect of it. It was the prosecution's case that the appellant stole Shs.200/= in respect of the first count and four .hea4o' cattle valued at Shs.1.680/=* in prepaing his judgment, the learned ngistrate found the amount not accounted for in respect of the .firstcount to be Shs.1,50 0 /, that is, •Shs.2,500/ less Shs.1,000/. In his defence on oath, the appellant said. .that In November, 1977, he received four head of cattle in respect of a case of cattle theft, but the suspect later escaped and so the four head of cattle remained unclaimed. In April, 1978, four more cattle were received as unclaimed property. Subsequently, the man who was herding the cattle started to press for his remuneration, and so the appellant went to see the O.C.D. (i.e. P.W.7) on at leastthree occasions about the matter. So, on 31/5/78, the O.C.D. directed that the cattle be sold. __ -•- L._ - .----- . -V V 34- On 7/6/78, the appellant sold all the seven animals, and realised Shs.4,180/, and one of the buyers uras The appellant went on to say that the next day, that is, 8/6/78, he handed Shs.4,080/ to the O.C.D., having deducted Shs.100/= as the herder's remuneration. The O.C.D. signed for the money in a dispatch book, but as the clerks were not in the office at the time the appellant could not obtain a G.R.I. for the same, and the 3 .C.D. asked him to go ano collect it at a later date. Cn 10/6/78, the appellant went to see the O.C.D. to obtain a G.R.R. but the O.C.D. was away to Bariadi. Cu i4/6/78, he again went to the O.C.D.-and demandd his receipt. To the appellant's surprise, the O.C.D. told him in disgust that he (the appellant) was not entitled, to a • G.R.R. As the C C.E. was his superior, the appellant said, . he had no option but to be satisfied with the C.C..'s exp l ana ti on . The appellant charged that the C C.D. (i.e.. P.T!.7) should . have been the person.to be tharjed and not hjmself. - I n convicting the appellant.in respect of both counts, the learned magistrate, with respect, does not appear to have subjected the evidence to any careful scrutiny. In convicting the appellant in respect of the first count he only had this to say:- "Looking at the evidence now in record it is amply clear tha j;~ s ev head of , cattle were sold during the period in question. it is also abundantly clear that P.T .6 bought 3 head of cattle for, Shs.2,500/=. It is the prosecution's case that P.!'7.7 received .Shs.1,000/) only. It is pertinent to mention that the particulars of' the charge hereof Count 1 alleged that the sum of money stolen was Shs.200/. I accordingly avail myself with (sic). the provisions of secticn 2G9, Of C.•P0C. and put record correct by amending the sum of Shs.200/= in Count 1. to reac Shs.1,300/= (sic) as sufficiently demontrated in evidence. As the evidence at hand absolves the second accused from the theft of thse monies I accordingly find him not guilty in • Count 1 and hence acquit him. But I find the first accused guilty of this charge and hence I ouvict him as charged". V As will be noted, tjiere is nothing in the judgment to show that the learned magistrate scrutinized the evidence and assessed it. There is no reference to the credibility of the witnesses and nothing about the defence evidence. 'V.. - S -- (4) :-- As a first appellate court,I am entitled, and so is the appellant, to evaluate the evidence and core to my own conclusion thereon0 . . . To start with the evidence of ?.W.7 was highly suspect. There was no documentary evidence, as thre ought to have been, in'respect of the Shs.1,OCO/ .'rhich he alleged the appellant gave him. No receipt was issued, let alone produced in respect of it. Although he says he enter t1 :'1,s aie i'itd'r, nc safe register was produced for inspection by •the trial court. Besides, the appellants clair.t that he gave ?.TJ.7 Shs.4,O8O/ and'an entry was made in a dispatch 1ook could 'easily have been verified or disproved by production of the dispatch book. This was not 'done. Secondly, ,the appellant claimed that he prepared an inventory and handed to the .b.D., i.e. P.W.7'. This, was not produced either. F'OW.7 claimed that the same were misplaced bSr the public prosecutor. This being the position one is bound'to raise eyebrows about the evidence 'f. P.W.7. And since it was' the word of P.W.7 against that of- the a,kpellant, I m ' not persuaded, nor was the state.attorney, that iti safe to let the convictions stand, in view of the many' questions which the prosecution's evidence left , unanswered. . It was for, these reasons that., I quashed the convictions, set aside the stences and ordcr of compe- nsation and ordered the appellant's imme-diate xoleese from custody 'unless otherwise lawfully detained. B. B. CHIP TA, JUDGE. Delivered in open Court this 4th day of 1arch, 1981. 3 D CHI-, JUDGE. Nr. Chaila for Republic.' . .'. Appellant - Absent.