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IN THE HIGH COURT OF TANZANIA tI4 APPELlATE JURISDICTION HIGH COURT CRIMINAL LPPE-L No. 37 OF 1976 ORIGINAL CRIMINAL CASE No. 209 OP 1974 OF THE DISTYLICT COURT OF LUSHOTO DL3TICT

AT LUSHOTO BOA Z I'4NICAI"IA . . . ....... , . . . . . . . . . . . . . . . . . . . . . . . . -A PPELLtNT versus mrm -T'TTTTr ,.t TyrC' T)/ThTTV T .L1]J, .;.Lb.rL)Dii L . . . . . . . . . . . , . . . . . . . . . . . •. . . . • • • • JUDGME1'TT SAM.TTA, J. - BOAZI IKLMP., the appellant, is serving a custodial sentence of three years. The sentence was imposed on him by the District Court of Lushoto District which convicted him of stealing by a person employed in public service, contrary to s.265 and 270 of the Penal Code,. He now appeals to this court against the decision.. The facts of the case are, haprily,. quite simple.. It was common ground at the trial that during the material time the appelant was employed by the Judiciary as a clerk. He was attached to the District court of Lushoto District. One of his principal duties was to receive revenue from clerks of the primary courts in the district He was required to enter the suus in his books of accounts and sign receipts as evidence of - . . his having received the money. It was not in dispute that between November 1973, and August 1974, he had received various sums totalling Shs 2,470/=. At the end of August 1974, an au.tditor chocked the appellant's books of accounts and cash in hand. It was discovered that the various sums totalling She. 2,470/- were not entered in the bocks. There were no bank documents showIig that the

monoy had been banked. The money was missing, and the appellant could not give any explanation as to what happenod to jt In his defence the appellant gave an unswoii statement. It was very remarkable for its brevity. It was a foUows: . . . . ./2 . . -, 2- "1 do not have much to say. I had a lot to do at that time. I was sick at that time and it is only now that I am in good conition. I have hospital report here The report revealed that between March 7 and March 25, 1975, the appellant was hospitlised at the Mirembe mental hospital. He was suffering from schizopia. :i'..àppellnt.'s defence was in effect a defence of irsanity. The learned resident nagisrate consit'ered he defence buc in the end he reject (3 it as untenable on 1e facts. This is what he said "The point raised by accused that he was 4.0 at the timoit is said he committed the offences can ot exculpate him. He did n't in the first place ay what type of sck.noss he was sufIering fxorn. He only Implied t1'rowh production o the Hospital Dischare certifiae that ho was sufferin'3 from a me'a. 4iseasc but hocUd',not sey so in clear terms. But even if it is granted that that wa what accused meant.:it.wod still not aid him hrcsuse no evidence at all wa adduced to show oven; on a balance of probabiiitie that he was suffering from the disease t the time the offnces ware committed. .Hei would be taken and trated .. otherwise if

he showed that he was mentally derailed at the time but becauáe he has not I see no reason to find that he i,s .not eponaibJe for tho less of Ghe money Can it be said that the learned resident magistrate misdirected hirrself in clrriViflg at that conclusicnd7 I c3o not think ad. Jvory person is presumed to have been sane at any time which conc into question until th contrary is proved: see s.12 of the renal code. The prosecution bears no onua to prove t1'it an'acdus was of soune mind at the time vhon uho offence Jid at his cior i said.7 to have been perpetrated. It is for the aecuso to satisfy he trial cOurt on a baJance of probablit that he was 1ealJy insane et thc tine. A1 that the appe1lait succeeded to VLbl1h in this case was that he was of unsound mind in IIarch 1975. • .. S V - 3-. This was a long time after the money had been discovorod missing. If the law treated insanity suffered at a time other than during the period an offence is alleged to have been connittod as defence, the law would be an ass • But, as must he acknowledged by every lawabiding person, it is not.. I am perfectly satisfied that the learned resident magistrate was right in rejecting the appellant's defence of insanity. The appellant did not enter the various suns of money in his books of accounts, contrary to what he was required to do He did not produce any documents evincing that he had banked the

moneys Neither did he offer any ex. planation as t' what happened to the money. From aD. theo factors the conclusion that the aT.pellant had misappropriated the moyey was, in my judgment, ineluctable. It follows that the appellant was rightly convicted. I can discern no flaw in the learned magistrate's judgmont.One cannot fail to sympathise with the appellant for the misfortune he had of suffering from a mental disease, but a court of law must administer ji.ietico in accordance with la. It cannot allow itself to he swayed by feolingof sympathy. It Is a court of law and not a court of sentiment. I tui now to the appeal against sentence. I think this can be Speedily disposed of. The sentence of throo'years' imprisonment is the minimum prescribed by law. It cannot, therefore be reduced without this court going ag.inst the voice of the lagislaturc. The appeal is dimissod in its entirety. - - ( B. .L. SiJJiTTA ) JUDG:.