19810302 TZHC Tanga

p1 -, N THE HIGH 'COURT QP T/LNZAWtA FTVQ JLPPEIILATE JURISDICTION CRIMINAL AppEAL NO. 27 OP 1980 (Original Criminal Case No. 618 of 1979 of' the (District Court of Tanga -District at Tanga.... Befores BP. Moslil - Esq, PRM AYUBtJKIWANGA........4..ApPELLANT (Origi Accused) THE REPUBI4IC.. . .-. .-. •.. . ..-. • RES?OIDENT (Orig Prosecutor) CHARGE: Stealing by Clerk or Servant c/s :271' and 265 of the Penal Code Cap. 16 Vol. 1 of the laws. J U D G E M E N P Sjsya 3:- The appellant, Ayubu. Swedi I(iwanga, and one Bakari Athuani Were jointly charged in the District Court at Tanga with the Offence of Stealing by clerk or sevant contrary to sections 265 and 271 of the Penal Code. Bakari who a incidentally, appeared as first accused in the Court below (and I shall throughout hereafter continue to call him SO) was acquitted and discharged The appellant was convicted as hargQAand. 11é. was - sentenced to eight years imprieoninent He 'i now appealing against both conviction and Sentence: It aa..established in evidence at the trial that the appellant was p -at the material time s a storekeeper employed by the Regional Trading Company (Coimnonly known by its acronym R.T.C.), Tanga, and he was attached to the R.T.C. godown at Gofu area within the thnicipality of Tanga His duties included the receipt of goods for and on behalf - of the R,T,C, and keeping the same in the godown qp.w.ell as issuing them out either' to customers who had already paid for them or on • ..../2 - 2 transfer to some other banohes Of the R.T.C. vyithin the region 6 4 He was being assisted in his th2ties by the first iccused He was, however, the sole cuatodian of the godown keye Evidence was given at the trial by one SHIDA 1iaAO (pW2) who described himself stock verifier.employed'br the R.T S C, Tanga, to the effect that whenevergoods were brought to or arrived at the godown the storekeeper would prepare adomezr, conveniently des- cribed as the goods received advice, in quintuplicate One of the • copies of the said document is fprwozded to the øardex clerk whop apparentlyt site in the head off1ce The 6ardex clerk enters details of all the goods received on the Oardex.oards Another of the said copies is forwarded to another clerk who, apparently, sits at the godown. This second clerk enters details of the goods received on to what are knoi. aa bin cards On the dcconti'. procedure when goods are taken Out of the godowx,PW2 stated that a. customer would first of all approach an R.T.C. sale's clerk and place an order of whatever goods he desires to purchase' The said sales clerk then prepares or writes out a osh,eaa.e receipt, again, in Al quintuplicate which is forwarded. to the R.T.C.Cashier Payment for the goods is made to this persons the cashier s who then tears off the first three copies of the , cash sale These are forwarded to the storekeeper who then takes out the goods paid for and issues them out to the customer who signS for the same on the cash sale The original copy is taken by the customer whereas the storekeeper retains the other copieS Eventually, one copy of the cash sale is forwarded to the Cardex clerk whereas another..is sent': the Bin card clerk for nece8saIr postings, on the c.rdpx card and bin card s respectively ' Evidence was also given by one ANNA MAuA (P5), Market±n' officer, R.T.C. Tanga, and one DIS CHIANGILE (pW6), the R.T.C. *13 I I -- Operations Manager, to the effect., that another means whereby gàods left the ILT U C. godvth was by way of transfer to other branches of the R.TIC. :j the Region The accounting procedure in such cases was that an 'nternal Stock Transfer Voucher showing the goods being taken out Would then be prepared and then, eventually, be signed, along others,the storekeeper taking out the goods and the driver of the vehicle transportiig the Copies of the said Internal Stock Transfer Voucher would also be forwarded to the cardex clerk and the bin card clerk who would make the necessary potings on their respective card's. On 14/2/79 PW2 went to the R.T.C, godown and conducted a physical check of the goods therein The appellant and first accused were present 'He,.i.e. PW2, recorded all the stock in , the stock check sheets (Exhibit pi). Thereafter he called for the bin cards (Exhibit p3) and Cardx cards (Exhibit P4) then in use. According to him i.e. PW2, the said bin cards and cardex cards "were in harmony", Thereafter he compared the goods shown in the stock check - sheets (Exhibit Pi) and the balance as.për the bin cards (Exhibit P3) and Cardex cards (exhibit P4): He found the quantities of sembe, speciai'and home baking powder, sugar an&:rice as shownin the charge, and all valued at She, 130,77il30, 'shorn He'then reported the matter to the R.P.C. head office and subsequently to the Police'Station The appel1at and first accused were then arrested and charged with theft of the "missing' t items In his..sworn statement in defence the appellant conceded that he was the Sole cuStod.an of the key to the godown. He could recall no Single occasion when he handed it over even to his assistant, first accused. At the end of every working day he and his assistant used to take stock of the goods in the godown As far as he was - aware there was no shortage of any goods at a11 In his judgement the learned Prinaipal Resident Magistrate had - among other things, the following to say ardI quote: "In fact the second aöcused person (i,e. the .eIiant) in claiming that there was no shortage has told the Court that all the goods allegedly stolen were 'sold vide cash sales.,.. brought to Court However, having carefully examined all these documents and the oral testimony of the witnesses who testified before me I am left with a clear mind that the shortage of goods as alleged in the charge sheet was present in the godown on 14/2/79 and that it related to. relevant period Accordingly, I hereby find the shortage of goodt aS.alleged in the charge sheet proved to the required extent"". This finding of the learned Principa1 Resident Magistrate gave rise to the first ground ofappeal which reads: "The learned trial Magistrate erred when he found as a fact that there was'by the 14th day of Februar' 1979 a shortage of goods worth Shs. 130,773130 in the go d own tt . . In arguing out this, appeal before me learned Counsel for the appellant, Mr. Mramba, submitted that the learned: trLal Magistrate misdirected himself infact when he found as a fact that all the, goods which were sojd were recorded in the bin cards and carex ca'ds It wo'Ltid appear this is a. point well taken by the larned coune1tor the appellant. There can be no doubt that the:principa1 witnego in the case was pW2, On this aspect of the case he . PW2'ha'the• following to say and I quote from the record of prOceedjiigs:. ..... "Xd - by Court: The accuseds do nQt write cash salesnordo they post any information in the bin, cards and cardex cards... In order to find out total amount of '6ods.1ssuedor.sb1d'•during the relevant period I .checced only the bin cards and cardex cards I did not check the cash sales•becuse they'werê supposed to be posted in the bin cards and cardex c4rds.., The relevant cash books could have been made available" •' (The underscoring ismine). , ... . It is not immediately clear to me why PW2 'did not see it fit tO check the bin cards and cardex cards and ensure that all the cash sales had been entered and properly too. Be it as it may lt it be emphasized that his attitude and conduct on this aspect of the' matter was most unsatisfactory and leave a lot to be desired. . Courts'of justice worth the title do not dwell on suppositions and indeed lamentable will be the day when this will cease to be so: ; -S was Without beating about the bush it dangerous for pW2 to have taken the bin cards (exhibit p3) and the Catdex cards (exhibit P4) on their : facd value and to suppose that they contained every material deail The said danger, as I see •it is not imaginary but real. : i will demonstrated pW2 himself stated in his evidence that it was not the duty. of the appellant to do the postings in the bin cards and cardex cards There' were' clerks specifioally assigned' tb do that job, that is the entry of all gbods received in the godown as well as recording all' the internal Stock transfer vouchers and cash sàI 'é:cipts on thbin cards and carde"cards. In his statement in defene he. appellant mentioned thb.t there used to be many cash sales issued per single day and' as: a' result of this thir posting in the cards was a'ways behind schedule ' Not 'only that. As a; matter of fact both bin" card' clerk and öàrdêx cà.rd clerk during the relevant eriod gave evidence at the trial The cardex car,d clerk s one JOYCE. KtJPA (PW3) 1 testified.that'on'14/2/79 the cardex cards and bin cards, :tovuse her own words"weye 'not matching The balances were different,. Both cards had mistakes Some docuerit were in caxé cards and not in bin cardsand'viceversa". This piéc'é of 'evidence was'suported in material particular'by that of e"A'iiAI1FANI (pW4) who was bin card clerk at the material time Abdj added that bin cards and cardex cards were not being compared every day"because there was no such procedu'e' " He also stated that occasionally he used to omit the posting of one or', more cash sales in the cards inadvertently 'If I may go further Joyce (pW3) was, in fact, more specific in her testimony on this aspect of the case In answer to questions put to her by the Court she IS recorded to have stated, among other things: "We had cash sale receipts which were not entered in the bin cards and cardex cards.....There are too many of them. We did not know we had them' We looked for them and found them". • It will be recalled that according to PW2 the information on • bin cards and càrdex cards on 14/2/79 tallied' This piece of evidence is in direct contradiction with that of PW3 and pW4; The learned Principal Resident Magistrate does nt however, appear to have addressed himself on this aspect of the case At any rate, in the light of all this namely the evidence of pW3 and pW4 considered in the light of the failure by PW2 to verify the cash sale entries on the relevant bin cards and cardex cards, can it positively, with moral certainty and to the exclusion of every peradventure of doubt s be said that there indeed was a loss in the godown? This being a criminal case and being cognizant of what it therefore entails I do not hesitate to answer the question in the negative On this grotind and this ground alone it is obvious that the conviction cannot be allowed to stand. The same which, incidentally, was not supported by the Republic is accordingly quashed and the sentence passed thereon set aside. It is furthr directed that unless he is being held on some other lawful charges the appellant should be released from prison forthwith. Delivered in open Court at Tanga. this 2nd day of March 1981 (H.E., $r') JUD GE