19770000 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 100 OF 1977 ORIGIN/U] CRIMINAL CASE NO.. 192 OF 1976 OF THE DISTRICT COURT OF KONDOA DISTRICT AT XONDOA Before N. A. Upaga . . . . . . . . . . . . District Magistrate RASHIDI s/o JUMA NYUNDO . . . . .. . . Appellant (Original Accused) Versus 11 THE REPUBLICO . . . . . , .. . . . .Respofldeflt (Original prosecutor) Charge: Count 1 Conspiracy to commit a felony c/s 384 of the Penal Code. Count 2 stealing by public servant c/ss 271 and 265 of the Penal Code. J U D G M E NT CHIPETA, J. The appellant, Rashid Juma Nyundo, and two others, namely, Jumanne Ally, and RajabU Yusufu, were jointly ck.arged (in count 1) with the offence of conspiracy to commit a felony c/s 304 of the Penal Code. The appellant was turtr charged (in count 2) of the offence of stealing by public servant c/ss 270 and 25 of the Penal Code, while Jumanne Ally and Rajabu Yusufu were jointly charqed (in count 3) of the offence of a1ing c/s 265 of the Penal Code. All the accused persons werd acquitted in respect of the first count, and the third accused was also acquitted on the tMrd-: coun±. The appellant was convictedin respect of the second count, and was sentenced to five years imprisonment. Jumanne Ally, the second accused at the trial, was convicted in respect of the third count, and was sentenced to two years imprisonment0 The appellant now appeals. For convenience, I shall hereinafter refer to the appellant as the appellant, and to Jumanne Ally and Rajabu Yusuph as the second and third accused, respectively. Inbrief, the prosecution's evidence was as follows: the appellant was a clerk employed by the now defunct central Region Co—operative Union, better knownby its a4cXonpl '.R.C.U. and he was stattMed at Kwamtoro village, in Kondoa district. As such clerk the appellant used to receive large amounts of money from C.R.C.U. which he ued for buying produce. He also used to êceive revenue for CR.C.U. which it was his duty to remit to the bank from time to timeat Kondoa. For these purposes the appellant used. O maintain books of accounts showing the amount of money he had at any particulartima and the produce he had bought. According to his books of accounts, by /3/76, the appellanthada shortage of shs. 40, 959/15 in cash, and a shortage of goods worth shs. 1l,992/6. On 6/3/76 the appellant boarded a bus at Kwamtoro on his way to Kondoa toWn. On the bus were several other passengers, - 2 - anong them the second accused who was sitting not very far from the appellant. The appellant at the time had a briefcase with a secure zipo At one point in the course of that journey, passengers disembarked and walked on foot in order to enable the bus to go up a hill more easily. Later allthe passengers boarded the bus again. As soon as the buS started to move ahad again, the second accused snatched the bag from the appellant and quickly jumped off the bus. But as he did so he fell down on the ground only 3 or 4 paces away from the bus. The apllant raised an alarm, and the bus conductor, one Maneno (P.w.l) immediately followed the second.accused and caught him while the latter was lying on the ground still holding the brief—case. Two other passengers, Hanidani (P.W.2) and a ward secretary (P,W 0 4) also jumped out of the bus and went to assist P.W.I. The brief—cake was returned and was given to the appellant on the scene. All eye—wit iesses testified that nothing had dropped at the scene and that the zip of the brief- case was intact. The second accused was then taken on to the bus. \ / The appellant mentioned to P.Wft2 that he had money in the brief—case, but he did not say how - much it was p ndrdid he make any attempt to open it to see if the said money was safe. In his capacity as justice of the peace, P,W,4 arrested the second accused, and on arrival at Kondoa P.W.4 and the appellant took the second accused to police station. At the police station, the appellant alLged that he had over shs. 40,000/ in the brief—case at the tiir the second accused snatched the brief—case from him. But when the brief—case was opened at the police station, only cash shs. 4,058/05 and a cheque for shs. 1,389/= were found therein. When asked how the rest of the money got stolen or lost, the appellant gave conflicting explanations. So the police officer who was interrogating him decided to arrest the appellant. On 8/3/76, the appellant made an extra—judicial statement to a justice of the peace (P.w.9) in which he said that on 6/3/76 he took shs. 46,C87/25 so that he could go and remit it to the bank. He duly filled in a paying in slip, and then went and boarded the bus. On the way the second accused snatched the brief—case in which the appellant had kept the money and jumped out of the bus after threatening to stab the appellant with a knife. The second accused, however, fell down outside the bus, and Maneno caught him, and so they ecovcre&the brief- case. But the money, which was in one hundred—shilling notes ) could not be found. On 15/3/76, the appellant made anothr extra—judicial statement to another justiceof the peace (P,w.7) in which he said that he and the second and third accused persons had conspired to steal shs, 3 7 84O/20 1 that he gave that money to the third accused, and that they had then arranged that the second accused would snatch the brief—case from the appellant on the bus and escapea in his defence the ape]-J..ant retrcbed both extra- judicial statements. He said that he had all the inoney when he boarded the bus, and that the money got lost after the secohd accused had snatched the brief—case and jumped out of the bus. He added that he announced the fact that the money was missing while they were at the scene, but that he himself did not know that money and the paying in slip book disapp..:ared at the scene. -3- The second accused also made an extra—judicial statement. In that statement the second accused appears to suggest that his mind went blank and that he j'is't noticed that he was being lifted on to the bus. In his defence, however, the second accused made a cleati breast of it. He told the trial court on oath that he, the pe1lant and the, third accused had conspired to steal the money: they had arranged that the appellant would kep shs. 47,iO0/= in a bag and all of them would travel together on the bus ? When they came to a hill, the passengers would walk on foot and the second accused would then snatch the bag from the appellant, stab him with a knife, and run of f into the bush. The appellant would report to police who would later reL:ase him, and the three would meet at Dodorna and share the booty 0 The second accused went on to tell the trial court that when: he and the appellant were travelling on the bus, he recived the bag from the appellant but as he jumped out of the bus in a bid to run away, he. fell down on the ground and the bag was immediately recoveredfrom him. The second accused added that he did not stab the appellant as agreed because, being a mroltkceat violent crimes, courage failed him at the time, and th;t he only agreed to take pa beèause he was lured by the large sum of money (Shs. 15,00O/,) which he had been promised, an amount of money which he had nvr possessed in his life. After examining the nature and contents of the retracted extra—judicial statements of the appellant, the learned district magistrate was not safisfied that they were voluntarily made, and so he chose to ignoë them in considering the case against the appellant. I will pause here to remark that the learned district magistrate was right in ic'noring the extra—judicial statements made by the appellant. To start with, there was evidence that the appellant was subjected to violence and sustained an injury before he made one or both the statements. Secondly, the two statements, the second having b-en made a week after the first one, differ materially. Indeed, one wonders why the appellant should have made two extra—judicial statements. In the circumstances, I think that there was good reason for suspecting that the extra—judicial statements were not voluntarily made; and if they were voluntarily made, the circumstances strongly suggest that they were not true0 The extra—judicial statements, therefore, were either inadmissible on the ground that they were not voluntarily made, or, if admissible, they were of little or no evidential value inasmuch as they cannot reasonably be said to have been but true'. The learned trial magistrate, however,, accepted the evidence of P.W,1 1 P,w.2, and P.W.4 as truthful, and so found as a fact that no money was dropped at the scen, and that the appellant did not have all the shs, 47,266/20 in the brief—case at the time the second accused snatched it from him. He accordingly rejected the appellant's defence and convicted the appellant as charged on the second count. The learned counsel for the appellant strongly submitted that these findings of fact are perverse. In his submission, had the learned district magistrate considered the fact that many passenqers surrounded the second accused at the scene andt. t there was possibly confusion, he would have given the appellant the benefit of the doubt. With respect, I do not agree. The learned magistrate considered the evidence of hc eye—witnesses 1 the circumstances in which the bus incident happened, the fact that the accused was immediately arrested and the brief—case promptly retrieved intact, the fact that no money was seen there, and that the amount of money was considerable. These were not -4--. irrelevant matters to take into aècount. Two other pieces of evidence lend credence to the finding that nomoney was lost at the scene: the first is the evidence of P.W.'P which is to the effect that as per appellant's b'ôbks of accounts, the appellant had a shortage of shs. 44,959/15 in cash' as at 5th March', 1976 If the evidence of p.W.5 is believed', and I see no reason for doubting it, the appellant could not have had Ehs 47,206/20 on the morning of 6th March, 1976, unless he had made good the shortage overnight0 The second is the conduct of the ap, ellant at the scene as described by eye—witnesses whose evidence the trial magistrate accepted: the ap 1 ellant never attempted to check the contents of the brief—case at the scene, and the witnesses said that the brief—case was intact and nothing dropped out of it. According to these witnesses, the appellant never said at the scene that any money was missing. When these eye—witnesses deposed to these facts during the trial, the appellant never put it to any of them his allegation that he told all the pa:sengers at the scene that the money was missing. That apart, the second accuseds confession is not k irrelevant. It is true that a confession of a co—accused annot be the basis for a conviction of another co—accused for it is well settled that a confession of an accused person can only be used as lending assurance to other evidence against the co—accused, evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction. In this case, however, the confession of the second accused, which implicates the aDpe . llanti lends credence to,the evidence of P.W.1 1 P.W.2, ?.W.4, and P.W.8, which evicancc, dare say, is from a very 'trustworthy source '. In all the circumstances, therefore, I can find no reason to impugn the findings of the learned district magistrate. I would agree with the learned state attorney that the evidence pioved beyond reasonable doubt that the appellant is the person who stole the money as alleged in the second count. There is, however, one legal question to which I must address my mind and whichi regrettably and with respect, neither the learned counsel for the defence nor the learned state attorney for the Republic , .' found it fit either to argue or allude to. The charge in respect of the second count is "stealing by public servant c/ss 270 and 265 of the Penal Code' The appellant was an employee of a registered co—operative society. Is such an employee a "public servant" within the meaning of that phrase in section 5 of the Penal Code? I am of the considered opinion that such an employe is not a "public servant". A co—operative society or union is neither a local authority, a government department, nor an institution of the Community; nor is an appointme"it of an employee thereto within any of the categories mentned in section 5 of the Penal Code. The appellant therefore, was not a "public servant" Ipso facto, the charge of stealing by public servant c/ss 270 and 265 of the Penal Code was misconceived The correct charge ought to have b'en one of stealing by servant c/ss 271 and 265 of the Penal Code, or one of simple theft c/s 265 of the Penal Code. Now what is the proper order to be made in the circumstances? Under the provisions of section 181 of the Criminal Procedure Code, where a person is charged with an offence consisting of several particulars, a conthination of some only of which constitute a complete minor offence, and such combinatioii is proved but the remaining particulars are not proved1 such person may be convicted of the minor offence -5-. although he was not charged with iti. The cohsEituents of the chhrge to be substituted, however, must be such as must have given the accus.d sufficient notice so that the substitution must not be said to have taken the accused by surprise and so led to a failure of justice. I am not aware of any decision whore a conviction for stealing by servant c/ss 271 and 25 of the Penal Ce - has been substituted for that of stealing by tub1i servanc c/ss 270 and 25 of the Penal Code, In the cascAu93-burg Pennyll Lekajo v. R. (1967) n. 276, this court (Cros, J.) took the rare step of substituting a conviction under sections 270 and 265 of the Penal Code for that of stealing by servant c/ss 271 nd 265 of the Penal Code. But the common practice seems to be to.. subtitute simple theft for an offence under sectiofls 270 and 265 of the P''na1 Code. The problem, it appears to me, is how to determine what constitutes a minor offence in relation to another. In my view, the elements of the particular offences in questiom and the penalties for each of them are the determinant factors. Now the constituents of an offence under sections 271 and 265 of the Penal Code are the same as those for an offence under sections 270 and 265 of the Penal Code, but in the latter the prosecution has to prove further that the pccue . was not mer,::ly a servant but was a public servant. Si &i ioi- tecos (consequentiJ. And Incidental Provisions) Adt, 1972, an offence under sections 270 and 265 of the Penal Code is now pubishable with up to fourteen years imprisonment, but that under sections 271 and 265 of the Pn.a1 Code is punishable with up to seven years imprisonment. The penalty provisions, therefore, make it plain that an offence under sections 271 and 265 of the Penal Code is minor to that under sections 270 and 265 of the Penal Code. • On these grounds, I see nothing wrong in principle in substituting a conviction under sections 271 and 265 of the Penal Code for that under sections 270 and 265 of the Penal more so Code,/leaves no doubt that the apoellant in this case must have when the been given sufficient notice of the facts and circumstances evidence constituting the offence of stealing by servant c/ss 271 and 265 of the Penal Code. For these reasons, I hold that the conviction under sections 276 and 265 of the PenalCode in resp.ct of the second count was improper. It is accordingly quashed. But under the provisions of section 181 of the Criminal Procedure Code, I substitute therefor a conviction for stealing by servant c/ss 271 and 265 of the Penal Code. The senthnce of five yars imprisonment will remain undisturbed as it is the minimum prescribed by statute. In respect Qf he seond accused who, wisely in my view, did not èiteed to two years imprisonment. That sentence, with r'espect, was illegal in that it offended the provisions of the Minimum Sentences Act, 1972. The property stolen was that of a sFecified authority, and the value is in excess of shs, 5,00e/=. The second accused, therefore, qualified for a minimum sentence of five y.ars imprisonment. Since he was a first offender, and in view of the obvious fact that he is feeling remorseful, I do not think that he deserves a day longer th -it the statutory minimum sentence. As no amount of eloquence in mitigaizien would save him from the rigours of the mandatory statutory provisions, it would be a sterile exercise to call upon him to show cause..why the sentence of two years imprisonment should not be enhanced0 I will therefore dispense with such an exercise. Accordingly, in exercise of this court's. .revisional powers, I set aside the sentence of two years imprisonment imposei,ton the second acused and substitute therefor one of five yars imprisonment. Save as indicated herein, this appeal is dismissed. / B. D. CHIPETA JUDGE Delivered in open Court at Dodoma this day of 1977, I j B. D0 CHIPETA JUDGE Mr. F.S. Chambakare - Counsel for Appellant Mr. Loum—Oj are - State Attorney for the RCpUb1ICG