19741213 TZHC Arusha 1

j Sv Jt f4 AT JRTJSHA •. '. MPELLJTE JURI SD lOT ION HIGH COURT CRIMINIL JPPE1L NO. 125 ..OP 1974 • ORIGINAL CRIMINAL CASE NO0 194 OF'l93: OF E LI STRICT COURT OF LUSHOO DI STRICT AT LIJSHOTO j Before M.M.'Semboja Esq. ,.............0District Magistrate .MfaumeAlliNgalla . 000000000000•.appe11an,, 0 00 0 0 (Original Accused) • . versus The epub1ic 0..eo.o..00e*00o0eeo..00, Respondent (Originki Prosecutor) MPME. • ': ''" . . JIGEME The appellant was found to hve stolen a sum of Shs.75,345/75 and some. goodworth shs.,889/36 from, and durflhis employment with, the Tanga Region co-operative Union • ' at .:th*eirSoni.Depot6 He was sentenced to be jailed' for a 1j'stantjv'e term of seven years and ordered to pay back she. 82,235/11. was the Depot' Mage'rand oVai all in charge of the stoCk, sales and co1lec'tons. Lccoding to him the over Shs.7O,OOO/, was ..s.to1en afte' dbbe a had. taken from ''him', at gunpoint, keys for the'office r'ñd hfe during' the night bf5th/6th September1973 in the'.enly hours of • 6th September, it is common ground, he was fqund in his bedroom, .'withhis .hCrids and legs tiedwith roes, and'a piece of plaster over his' 'rnouth ' ' •,• The learned. Ditrict agistrnte who Caw qnd heard the • witnesses, and the appellart,'..was Catisfied that the alleged robbery was faked 0 I am respectfully of the same view0 ..Aecording to the'auditors report tendered in evidence and not diputed, the money ought to have been banked at least twice a week when.the bank, apparently mobile, served Soni. No money was banked from 27th August until the day of the alleged in,cident. The appellant did not explain why. The evidenc€. of both Ni RI SITTGi NO nd ?.W.7 Hi SSAI MDOE watchman at the Co-operative and Somji's :.eepec.1vely, shows clearly that these people were in a position to see the comings and goings that night and that they would have seen if there were any strangers around There were, besides ,electrict lights. • The •witnesses heard no noise of anymotor vehicle ti€.re so the allegatiOn that thief s came in one cannot have been true. DtJNCIN MNKAI P.W.4. a Li"dep Mechanic who was sleeping in a room only six paces from, the ppellant t s room, too, noticed nothing untoward. Having considered the evidence on record I am unable to disagree with the learned trial magistrate that the alleged robbery was a pu-up job which the appellant arranged after he had stolen the money inclusive of the large sum his assistant, ASIA SHNKOME P.W.2, gave him only the previous evening on his return prom Tanga. The appeal against conviction on the first count is accordingly dismissed and I do not propose to disturb the sentence of seven years imposed as the sum involved was so very large. Crimes which tend to frustrate co-operative ventures must be discouraged. ..e 2 I respectfully agree.. with Mr. Mwipopo for the respondent Republic that to supo't the, conviction on the second count would be hazardous. The auditor's report nere]y shows the total quartitics Of commodities ieceived between 1/6/73 and 5/9/73 had the stock found, actual and per book. The daily or at least periodic stock records are not given so that it is uncertain whether the appellant was aware of 'any shortages, and it could wellbo that thé"we.re a result of inadvertent over—supplies to' ..c.ustomer ''Besides, othex People including P.W02,. the 'appellant's assitant, had access to the goods even in the appellant's absence from the station...., Fur.ther, tne Prosecution, did not allege, that, each time the' appel1'nt was away' 'from the depot', vhen business would continue as usual, the stock was physically chacked upon his return, and more especially in the evening of 5/9/73 when the appellant last returned from Tanga,. The learned District Magistrate remarked that the shortages were the result of the appeileJit's negligence. They inight h'vw: ben, but that, without more, would not in law sustain a conviction for theft. The conviction on the second count is 'iifë r": th€' circumstance's. It is thOefcr.s quashed, and the sentenco. of three.yes'.rs i..s set aside. As this 'Was. ordered to run cncurrent1y with the sentence on the first count the effective term of seven years remains undl$turbcd. It folloi s lso tet the app€llont 1ill now pay back to the Co'operative Union only shs.75,345/75 and not Shs.82,235/11 as ordered. This court has several times' rarked'. .tht orders to repay stolen monies must not be "aftO'r reeasC "from..'pr.ison. Persons in whose favour orders to rafund, suchrnonies".a±'e m:ade'ar.e entitled to try to recoer as soon as thcy : wish':" th'ey do not necessarily have to wait br the r'1c,onor's reic-ast. i.ppe1lant absent unroprsc-ntcd. Mr. Mipopo foi Republic. LOMO.MJKAME, JUDCE Dolivçred in Court at ruaha this 13th Day of December, 1974 S it