19720306 TZHC Dar es salaam

XII u:. ccu . c-: DL ..4j : •I:; J.) JIZ.XLII (iJiXiZ, :;c. ...........t: i71 C .J J. L23 )iJrJ:c tXJ2 c; IJgL )ILC L,. • • 9 • • • 0*•• . . - • • . • •JL,4 -.i.J-. - r- • -1 (iriiiw1 ooucod) vOrcuo 2t ( i1ri3. CCcLttQ2) '.1W ?_ I t Ccimt 1i b iutic :o'v- nt do 265 o tho .o1 OoGo. 2n1 Count: Cit'ic L tciiLl r,icuJ :: from c tco! 0/ , 317 (o) cS tlio Cct2o, C4- . 16 of to • .' - - -.- 'I ti_. GYiif, J., - 2ho cpro limt, in thio co to th.o'2 cn 2 ooat3 :ith oto.1n'; by l ablic oricit c/c3 265 czd i'iO o tho rcn1 Co&, Lnd titli rcu1cnt ic1co .000ntij do 317 (o) 02 tho cid Codo. th t cciviotol cn to ocuno tnd 't; ocncacc1 on tho irt oo:nt (otc14thij) to 2 -o. o' sprLccn ccir ttl to tho L.O! 24 ctr000 O OOi'fCT 1 flL1t nd on LLo 2ad count (frt.t1cn', 1co cootirj) to 6 coztho' F-i' iconont • otIL cc -ic toro oxb_cd to rcn oocuzvnt1y, ro1].cnt h_... :iti L ,•1cd to thio Ccurt in liic oorwicticn unit coatcaco. 21ho o11Lz r11tior:oz'i1 to tiz cto 9 , r the .'c' - nd o1oectztiotin0 icn ioot Cooz' - tion tz lk lio 40 itz Ioot rcotor 1oy. It t.p rt of tho ('O11L11t C (Kt1Q3 t o clo 1 t± 'OQ5 O'O - hto coo croo ott of ritch •1iij. It ii o.m £oid oco:.xr in thic cr'zo:J. to 1O:1 d&ticiiL -vidnc to 'c1rij to T:ccQthrO for c1n' t'jti ronoj cro Lud f or thic rroo o .ciotdnt io1 Cc3r0210r r o i1cin 9 (Ooorro Thcfo) c21'x1 0. o tccir. o ocCu..'o ic if -. a.nbr of 10 b1ic uai ciloo to :nd r2.cn7 br conoy odcr ho CM0 In . roncy oz'1or roquioitidn ox tri, inter t1!c, 10 onte to :: to of the c]c0 tnU 1.io thlo. Lo hcL ho on to;otho, :ih c cli to tho oj'1 cic'±. coj ox'ior Ic thon c' o cut in du:.licato ana i. dobt noto Ic oro. Zho oriin1 hich ic oio1y tho noncy O1O! !ih 1tJ CO. tor2oilo r3co:t Io 1i';n1c1 tO tho ondci'. 2 ~ o pO3t o.ico cth tho C.urlicto or 'CO to tho 00 . • . -• • . • •. -I He eitored the rsfpeetive registrationnu3ibers and the post oice ff of orii on the green teeoipt card (xh1b1t C). He took the postal packets a the green card to the appellant on the 8th February t 1 0971 The appellant took delivery cf the 12 regie- tered pOstal packets eth signed the grean . oa.rd accordingly4 it was the appellantt s th.ty in aocoz'danee with the estabiohed pro cedxre to enter the Th.ct of, the receipt of aM the contents Of tha two po5tal packets in the Rester Record (1xhibit' D). it as cleerly ectablished by evidence that the postal packet No frm0hin1ala post office contained 'tonoy order cash' to the amount of Shs. 1841/50 in respect of &ney Orders No. 0497415 to 0497422 aM that the postal packet No. 0840 from Chunya Post Office eontained.Sh. 2518/50,o in ad&ition to ontoring the eon tents of. the pOtal peket from Chunya Poet Office in Ezhibit D it was also the ap flnt s duty to onter thorn in Exhibit K which dealt :ainly ith remittanee from departmental or i11 pOst ôffices. The appellant did not enter up the details of either of the postal packets fromCimala and C!hiinya In zhibit D but he enteredL the details of the postal pDcket from Olwnya in Exhibit K. Th. matter came to light from a querry (xhibit J) from the Thnzania 4oriey Order Section Nairobi Headquarters stating tbat the 1one7 Orders Nos. 0497415 to 04 97422 issued at chimala had not been accounted for These money orders were traced to the appellant and be was óharged with stealing Shs. 1841/50 being the value of the said money orders. In his sworn statement the appellant stated that daring the period the incident took place be bad personal vorries which gravely impaired his work and prevented him from concentrating in his work. He stated that his brother who was working at wnbawanga with the National /gricultural Company was convicted of stealing Sho.10O0O/.= the property of his. employers. !L!hi fact diMrcssed him terribly and the inquiries he conducted about the circumstances of the case led, him to lodge a petition with the Permanent Commission of inquiry in December, 970 against his brotherts conviction, in the case. The 'thole .inident worrid him to such an extent, that be could not bring himself to concen- trateas he used to do previously in his 'rk. DurIng the same period (December, 1910) he waS inetrcted by his Regioal Director of the East African P6sts and Telecommunications to keep himself In readiness to proceed shortly to United Kingdom for a course, ife had to travel to Dar es Salaam in January o 1971 to arrange f0tr his passport and p ther matters cormected . with his travel. The fact that no definite date for his departure was fixed but that he was expected to stand by to leave at short ntice further imsettled hin. Bask to Mbeya he had to deal with a lot ofoz?ec- poridencos, public inquiries and cash transactIons which he fowi& difficult to cope withjnthe mood, in which ho found hittrse3fi. He stated that on or about the 13th Pebruary, 1 971 be was :aske to proeed to Dar es Salaam not later than the 16th for his travel overoas. Tttis not in dispute that the appellant in fact proceeded to U.K. for a course and that the disoovery of the lOse and the subsequent investigations took place when he was away in U.. In answer to, the' specific charge against him the appe- flant stated that his state of mind during the relevant period was such that be could not now recall with any degreo of certainty what happened to the poStal packet* He stated that if he Indeed received the postal jacket he did not 'believe that he open.ed it .1.4_ and tht it could b-v £1 en int# u'rthcrzd li- !clr. Fo ciC.tcd thrt it could h-vo bcc 'covc2 fron liio trblc in hic office bofore be frc1 the ci rco to open it. :o ct'tcd tIit hi f ice tlrC opcn to tho ceoc of tio rublic r'n1 tirt rt of ho cutioo t: to crt - it ir!ruirio n to rocciv cenl'intr rOD ccnboro of the public. ecidc, otho' r2bc: of the ctff hd c:y CccC= to ho offiloc. .io urihor cttcd tht lilo yctcn of dicpocin of riotcrcti lottore cc to picco then in the on ho t±lc boforo dorflrC pith then. lb c-t C it rz cuite pocciblo thio jocte.l p'cLot &ht bv 1ccn cflrcr.d txa it foil 1 into rrcz lircic. htovor cirht kwo been tho ee, lie otod, he tmo cure lic lz'ji ricvcr Civ.n thuht to cto lizj y.iblic roroy. In thic connection ho r t.tCt th.t on t:ry cc colono in tho courco of ho duty counter clor1:' b.d CiV.n ht zoo conoy tli -n they bcd cn -'Zorcma in their recordo cnd he lied on a cli occoion roturxiCd the c::oco. Thoo eccr r:rto r - n into thoucero of c.hilinc. rincily he ct'.tcd tIr - t i: ho m, nt to ctc.1 thio p3rticul - r rc% ictcrcd .ci:t he could ortily Ii vc cth atod the crocn recoipt cerd (:ihilit C) ' ich I ore Mu rif irt"ro nd dcc- troycci it without dotoctioc cinac be b- O in hiL. pococoi n the hey to the co there it r:u hopt. Perto of the 'p:ollcnt' ctory ioro cori'otore.tcd by coto of th. uitnc cc for the ' -rocecutica cnd by core ducnco tinccr.ce. 1'.. ., the rcictr - tic: clerli ttho hcd previoucly vor1=2 in the ep oilrnt'c office toctifiod thet the pollcnt :r. ci ho of.ice ulth the ; upcxvieor c-nd th t the public i re corIInC into liic of icc rith corjl-'into rnd th- lro torc providcC,. for the rublic in ho ofico. lie leo ctu.tcd tht it ve oc ibic for the rp,oilnt to receive x'ictcred roct'.l prchto tlo ho vo ondinrj to the .ublio c-nd thet he t'rc not curro thrt c-ny cpcoi-1 tine t:,'o &votcd to li ritli r. jctcrcd pc-ckotc- c-ftor the public h cone, D. .2 n poet of ice oficil at Ebey: tootificci th t the p - client lcd roiarred to hi:: 20/ trMcli lie found to be In o:ccie of the ccr.oy tI: t rhould have boon :'id to hiz md tlr.t ho tould not lrve cicteotud the niotcho if the yollzit did not r. tt,-m the nancy to bin. r. .7, toeti- hot he ltd tzrkcd t:ith tho p22rnt cc tup: ricor in the loot Cfficc 111oya. flo cttcd tlir't lie cirred c-n of ice vlth the poilent tnf'. t!r- t p.rt o2 their Cutloc t- c to P.tt nd to ncborc f the public tho cco to n'i:o inclrioo or loco conpirinte. lie cttcd thot nzbcrr of the ublio tic-re ooiir3 in uvcn ihcn not ociloti in c-nd thct thcz'o i:ec no cpocirl tine to r.ttcth to then o lonj to they tiore in the off ice to rico tcctificd thr.t lie rcnnb rccl tho.t P. certrin poc-bl pificici, lyico, onc. pid the ppoflzmt zitout hc. I CC/ noro thrn urz necoceery rrd tbzt the rppoUc.nt roturncd the c-ieowat to Liti. ..5, tlio ctin •'c'icte.nt aciow 1 Director of Pocto c-rd olccorntinicetion3 to: tificd that be bc-U occrcion to vie it .boyr roct (f leo In the couzec of Mo Inopoction tior c-nd thct ho dicizcc-cd tith the c-pol r nt the then t Eheyr'. c-bout the need to nc±3 icyrovcn.ntc to the poet f1ico cc1peciclly the cortinj oficc.10 c-,rz: ci uitli the nece- oity to cet c-dde the ctpeUcnt'c of ice c-pert froc the coabcro f the public bcouco it t-c-o pert of ic dutic: to lirdlo cc-cu nd ctcnpc. The icerned Erictrcto in ho jucncnt rcviorci the cvi- cnco c-nd dc.lt ':ith the icrioc in tho.o terz:- Tou lot no look on the 0t o from both cidoe. The pr, coca- tior contcncic thr.t c-ccuc:I rccoivcd the ttio envolopoc fron hunyo. c-nd Chic- ic- but c-oountod for the oantcnto of the bunye cover md CUd not recount for the contcnto of the C1ilcic ovor bocruco he bad in cir.d the intcntion to ctc 1 the D'.nCy con- mmcd in it und ho cctucilly etolo the conoy. Tho I'rocccution • .0....).r 94 • I now turn to th th.trd of the learned tagictrato' a rca- ona for rejecting the defence. The learned I 4iaiatrato a1loo4 the appollanto bank account to be tendered in evidence. There was -no Eujgoetion thct the pro rocution sought to link any rticu!Lar depocit in the bank with the otolon money or to put it in another uay, that the proecution cowjht to trao the mia- sing itoney to the cppoflant'o account in the bank. The purposo nanj it aecmo.rcO1abJ4' clear, to chow that the appellant 'a account at the bank wao vcry loti and that he tias in dire need of money. Evidence is even led to ahou that the appellant irne borr'o;iing money from come of his colleagues with a viou to ortabliab- irig the appellant's poor financial standing at the time • The holo purpose was to olioti that the appellant ur0 in dire need of money end Irac therefore likelr to have stolen the miasive money. In fact this point t= cpecifically put to the appellant in crone-. examination and it in trorth ttbilo to record hic answer which was an f011OwS3s. "The need of monoy is a temptation for one to steal some- body's money but it depends upon the character of the person. " It in my vtcu that evidence rhich tends to etabUsb an acuoed'n disposition to cemnit a particular off enoc is nadmtcr:iblo as an wwarrsntod attack on his character. The evIdence in tcndentiouo and has no probative value and can onl.y prejudice the fair trial of a cane. I earmot eubecribo to the proposition that a poor xn in more d.icponcd to steal than a rich man because sound moral chcractor or moral probity is not based on woalth, Thoso matters are and hou1d be irrelevant in the trial of a cx'iiinaI cane. They can easily load to a mic. carriage of justice. It cannot be said that this piece of ovi- dance did not pro judlOally afoct the mind of the learned flaictrato in rejecting the appdilant'ri defence. It is only fAir and proper to point out that the appellant, irrnpito of his dró need of money, had domonotratod that on a numborofoccaniono in which he could have taken advontao of others' mistakes with impunity he had not done cc. In view of the forogoir,g it oannot be iaid that the pro- cotion had established beyond reasonablo doubt that the appel]mit stole the money uitb which he was charged. I will allow this appeal.. I will aloo allow the appeal in count 2 an the charge of fraudulent false accounting was ancillary to the count of stealing. !ippoal allowed. Conirietiori and sentence are hereby cot aside, The appollent is hereby acquittod and hould be dcbbaiged from prison unless he is serving any other cent eric o. DoUvorod in open. Court thin 6th day of flaroh, 1 972: gd. G.C.11, OtLwc JUDGE