19710319 TZHC Mwanza4

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'12flq12J 12tm2rT p1112 12UflJ)j atJ12I2PUBdW 'SU 12 IID(1(1 12 OTI jThy 4 Acr11I)I-'I • '°POD I12U9d Dt. JO cqz pz2 OLZ 9VOTO0S o LteruOo O lT q-nd otq UT poodtuo uosiod q? uTI e o 3 :3DjH3 (zonooso1d I 12 UTTO) NaMOdH • • • C • • C • • • • • • CC • • C IIfldH RHJi SflSIOA (posnoov pu si TuTtJO) rmaw Vomfllni NTI[ddVC C * (( nn[I)iHHaN1tdw CD12iqSt12TJ quopTo0i ''bs.r ttq12 91OJD a 12IU12j2Ut 12 Ot$TCE 12u12uiU C JO !~ xnoo oOtiqst Dfl JO oL6i JO (Or 129123 I12UtWt13 I 12 tTIO oL6i Lio T17cON S'I7dd1 'INIiAII.10 .uototpstInf oqeodthT L IWZL ffO JflO. HOIH HJJ UI - tV *Ii -I - -' ,_ . 4- - - - -- - - :2: instructions that the second appellant should cash the ohequc at the bank on his behalf. The second appellant, who hold a cash box with both keys to it went with the first appellant to the bank where he cashed the chaquo, and kept the money in his cash box0 He paid out shs.347/55 to Shigolla and shs.283/80 to the first appellant as their respective salaries0 The second appellant then was left with cash shs.4261/20. As Shigella could not cash the second cheque, he remained behind, whila the two appellants took a bus for :enyenye. From there, thct proceeded on to Mwamashalc, where they arrived at about 6.3 0 p.rn There is no doubt that the two appellants arrived together with the cash box and they found Alexander on guard duty0 Alexander opened the office (not the strong room), and the appellants kept the ceeh bow in the office room0 The evidence showed that this office room had two doors into it. Alexander said that he oped thc external door and he saw the appellants put downi the cash box. After closing the door, ho handed over the key to the first appollant i':io was supposed to stand guard for a whole night. It is a fact that 4 he first appellant did not keep guard to the office house. The first appellant said that the z3ocond apiellant told him that he need not keep watch for the night as he was taking the cash to his house. He alleged that the second appellant just kept the books and tie empty money bag in the cash box during that evening. On the other hand, the second appellant denied this allegation and said that the cash remained in the cash bow ; and that he did not take away any money with him, as the first appellant was to keep watch for the night. Another explana- tion, inconsiocnt with the explanation of the first appellant, was given by Kidiga (D.w,l), who alleged that the first appellant told him that he could not keep tha night watch because he was "too drunk to watch. Whatever be the case, on the following day, when the first appellant went to the court house and opened the external door, he found that the cash bon was stolen. There was no evidence showing that any of the two doors to the office had been tampered with from outside.: However, the first appellant went to Maganga (P.W,6), a carpenter. where he borrowed some screw nails and a hammer. With this he attempted to repair the door. He said he did this because ha was afraid that if the damage to the door was discovered, he would be dismissed from service. There was evidence showing that the rear door was found intact 7 but the front door which is locked with a padlock was found open. As I have said, there was no evidence that the front • '-' •' ently effected. The learned magistrate found as a fact that there has not been any physical breaking of the door, and tha the thieves must have opened the door with a key of the padlock and as the first apollant was the one who had the key, he must have been a party to opening of this lock. I agree with the learned trial magistrate :3: that ingreas into the office room whore the caeh box was, was by opening of the front door, and this could only have boon done by a parson who had acces to the kay of the padlock. However, with duo rcapcct, I do not think that the learned magistrate's conclusion, in th: light of the evidence on reCord, is sutainab1a. 1exander (P 4 1'i,3) was asked in examination—in—chief as to whereabouts of the second key to the office and he said unoquivocaly that the second key was with Shigela. In other words, the mess angers kept one key to en:c office and Shigella kept the other. On the material date th:: refore, one key was with the first arpollant and the second key was wit Shigells. There was no evidence on record to show that the second key in the custody of Shigella could not have bean made USC of, by anybody else, in opening the padlock to the front door. }Iacl the learned magistrate considered this possibility, as he usually does, I doubt vary much if' ha would still have come to tho same conclusion that the first appellant must have used his key in opening the door, end 'nat his subsoquant behaviour of reporting and borrowing carpentry hooks were calculated to mislead the course of law. Like the learned bttc attorney (Mr. D'Souza), this gap was fatal to the prosecution case. The accond main point relied on was the allegation that the breaking of, thee cash box was fake.. It was th prosecution's case that the cache box was damaged after the money had bean taken out. The cash be:,: was found some 100 yards or so from the court buildingb and there was no money therein. It was damaged on one corner and it was ecid that a hand could have been entered easily inside, and was taken out the money, but the contentionthis was not the case, and the learned magic -irate accepted this contention, However, I find it difficult to believe that the learned magistrate could have accepted that contonticu without evidence showing that the cash box was in fact opened in normal way and the damage done aubsequently. The fact that the bc]:: of the cash box was functioning normally does not mean anything at all. This could have meant that when the box was violently attacked the dlock was not affected by the external force, Besides this, if the second appellant had both keys to the cash box, then there was no need, so far as ha was concernad to break the cash ho:: as he coud haVe used any of the keys in :is custody. In the result, I find that thee evidence, iii this respect, does not in any way show that the cash box was opened first and then damaged as the prosecution supgested. The cash box could just have been broken in the course of opening" it. In the light of this evidence, I cannot see how much weight -.44-- t-crn2 DNIJDT (mcrrrI)J...4I a N0z) iL6i uoij ;o w-6i uo Tarnoo tzT poTD.TTcc •sodind InJMI ito tios tZO PIt P°°T cq .DptSi j7IO iDtIt3 SC-OUOqUDg. pDtJSflb uoqotAtto 15[HO uoiq91tLu00 ou. I.,ioddiis ou pip otLxoqr o pru3o o'ri uotqotAuoo Otfl. plOticin O DJS qi iapiSttoO Tou op i puo puiw w Ut qnop :quoaox e SOM2DI PI S 9OUtIO tqusumoIto YT qaqq putj I •xoop uii -tct jo qonpuoo suIIDdcIa qsxtj o. uo qnd oq uo ft