19771017 TZHC Mwanza2

IN THE HIGH COURT OF TAl~ZL.NIA AT M?lANZA .APPELLATE JURISDICTION HIGH· COURT CRirvITNAL .APPEAL NO. -109 OF 1977 . . . ORIGINAL CRIMINAL CASE NO. 69 OF 1976 · OF THE DISTRICT COURT OF tJ1IBRD7E DISTRICT AT. UKEREWE Bcfor~ T. B. MUT.AKYAWA, ESQ., DISTR!CT MAGISTRATE WILLISON lVf.A.h'DRB ••••••. ~. • • • • . • • • • • • • • • • . • • • • • • • • • • • • • .APPELLANT (Origino.l Accusod) versus TI-IE REPLJBLI C • • • • • • . • • . . • . . . • • • • • • . .• • • • . • . . • • • . . . . • • • RESPOIIDEI~ (Original Prosecutor) CHARGE: 9 counts of ·Forgery c/s 337 of tho Ponal Codo. 1 count of ~t~G~ing a falso document c/s 342 of the PGn~ Code. 1 count of Stealing by porson in_thc public sorvico ,c/s 265 and 270 cf· the· Penal CodG. · JUDGMENT LUGAKING-IR.A 2 J. ThG· appGllant and one Mohuni0d Chanda wsre jointly chnrged befor0 the District Ccurt of Ukorcwe with nine counts of forgery and one count of uttering a f2J_se dccumont ~ Addi tic;r..ally Chande, ···· .who ·was the 'first accused at tho trial, was charged with stooling by a pGrsc-n employed in tho public service •. Chan~·e was acquitted on 0J.l counts and discharged whilo the appellant was convicted on five counts .of fcrgory, i.o., the first to fifth counts, and on the ·::t:enth count of uttering. Ho was sentenced tc, concurrent terms of six monthsr imprisonment. Tho off.en.cos wGrG alleged to have boon -committed between 23 Octob0r, and 11 November, 1974. Tho accused porsons were ertJ.pl0yod in tho Department of· . Natural RecoursGs at Nansio in rnrnrewe. Chanda· 'was a FisheriGs Officer and in charge of the Department. Tho appollant was a cl•ork undGr him. Botwoen 23 Odt;·cbcr, and 2 Ncvomb0;r, 1974, Chcinde wGnt on safari and took an im:prost of Shs.-700/=. On hi-s .ro_turn:· ·he· handed a numb'"'r of. rocG:i.p_ts. to -J,he appolJ.an_t ·to preparo a ·voucher for :r8tiring the- imprest. The appcllru1t µid .not pro.pare the voucher until 8· NovG_mbor. VJhen it was, finoJ.ly .·. prepared ChD.il.do signe:;d tho vouchqr v-ihich Vvo,s sent· .-tc, tho," :Pistrict Accou.r.i.tant for .issuing a _ch6qUic;. It Wn$ in th0 office cf. ·t_ho , District Accountant that the District FinanciE:.l CcntrollGr., . · Bunku. Ju.ma Bunku (PW. 6) nnd a cl0,rk, Musira · Mussa Musirn {PW:. 5), disccverod that the ton receipts attached tc. the voucher'boro · alterations. Mr. Bur.Jtu testified that he th0n tcok the voucher with the rocoipts to the appollcint I s oft"ice wh0re he f 6und · bo,th the appellant rurd Chande. Ho shc:.,wod · them th0 al terod receipts and they c:..lloged.ly ad.mi tt°ed -tc- have made the al tGrations. Irt court tho· 0,ppoll2.nt ruid Che,ndc doniod ·to· have· admi:t.ted ·· making the nl torations. Chan.de stat0d that· thG appoll'w.i.t lost some of the receipts and alle:gedly fcrgod tho ·remaining_ to ·,. . cbvor -up his· nogligcncG. Indeed~ the c.ppcllant ad.mi t:ted· rocc.i ving twenty receipts although cnly tcnwcro attached to ·tho -voucher. Chanda also called a witness, J:...natory Kidu.li (DW.l), who alleged seeing tho appcllEI.Ilt ·al tGr c-no o-f tho recei:Pts on 6 1kvember. Tho appG:lla:11t 1 on the oth0r h2-nd, stc:.ted· that: thG rec\3ipts_ w_6re ~iv_ Gn to,- him alre?,dY al t~red.. Ho prGpared. t~o first. VO½Ch?r· .(cxh.Dl) but feeling hGsitant b0cnuse·cf th0·cltora:t:i;ons he· conf'rontod ChalldG tmd qu0sticned him about the matter. · · Chande allegedly forced. him to-go ohead with th.G vcucher° threatening to terminate his sorvicGs •. '. '.rho o.ppellru1t · the:n prepared ··a ·second .. voucher ( oxh. C) which' Chonde, signed end. gavG to a messenger . who .took it to the office of the District Acccuntarit.. · · ' .. /2 ·,. 2 At tho close of the prcsecution cc.se the trial rnccgistro..to acquitted tho app0llu.11t snd Chande on the sixth, sevGnth nnd ninth counts bccc.uso :t11.ese were nc prosocution wi tnesscs to tostify o Thd eighth· count wos wi thdro-1Nno As wo hc.ve just seen Chan.de vnis ·eventun.lly ncqui tt'3d cri cJ..l ether, ccunts. I ·.will now consider the counts on. which .tho 1J.:ppelJ.c.nt . wc.s convicted. I will_~~a~t.".V~~h tho SGCCnd,and fifth ccunts" · · In thG soc end ccunt, Ch['.ndc heed c::. mocl c.t Sclrunr:, Guest Hcuse in Singida worth Shs.,10/=. Ho wo.s issued with the crigincl . · receipt, .ex.l.1.0 .E., .:But b2ck.e..t Nc.nsio. this receipt shc•wed Shs-46/= whereas the duplicnto, eY..h.F, showed ShsolO/=. Ne witness vn:s called from Se.lama Guest House to cc,nfirm that the origin2J.. h1.?..d net boon cltcr2d by its mGnngomcnt. ·.~ Althc.ugh, therefore, there wc.s an obvious alteraticn, there wus no evidence of forgery. Th·c trial magistrate should hc.vG registcrod ncqui ttals in the same he did in co1u1cction with·counts six, seven and nine. Tho appoal is thus 2...llowcd on count tvrn and the conviction o.nd sentence are sot BSideo With regard to the fifth ·count, Chan.de had a beer at the Hotel Internationale in Dar cs -Sc..l2;am0 He pc.id 2.nd v,as issuGd with a rGCGipt ( GXh. U) which showod [111. am.cunt of Shs .14/=. Tho duplicnte wes not available. It WGS testifiGd by Edwirt·Nyirenda (PW.4L tho be..rmc,n at tho Hoto, that beer recoipts wore written in crigincls only. He also. insistod thr~t th0 amount in Exh. U should hnvo been Shs. 4/25 only a · I think it was do.ngerous to c,ccept this ovidenco n.l though thero woro. indicc.tions cf· inter- ference: with tho figures in exp.a Uo It was d2,ngercus bGC[iUSG Mr. Nyircnda could not roc2J..l thG brand of beer cc,nsumed by Chr..nde nor did hs kn.ow thG boer prices prevailing in October, 19740 H2,d th0 duplicc,te rcce:ipt bGen avnilc,ble or, 2.t loo.st·, hnd the beer consumed beG:r'l. ascertained, then dc'.ubts would_h::?,v0 been dispelled. _ In the circr:IJ.stD..nces it is uncertnin thnt ; Shs.14/= WGS not the truo v,;,luc cf thG beer sctuclly consumed. Tho appollwt is thcrcforo ~cquittcd on tho fifth ccunt and the sentence thereon is sot asidoo · ! will now turn·tc the first, third end fourth counts. It tr1U1spires tho..t o.t the clcsc cf the prc,secuticn cnse · tho . evidm1c0 G.gainst Chwde r-:J:1.d the 2,pp0llant wn.s their o.l.loged · admission to T11ro :Bunku (PWo6)o Tho' trial mngistro..to did not act on tho o.lleged ndmissicnso Prosumr~bly th8.t p::-.rtly explains Ch2.nde' s ncqui tte.l on all counts. In convicting the [',ppcllant, howcver 9 ho a.cted on Chnndo: s wcrd thct the nppe·11::-,nt lest some of the receipts EUld forged the remaining tc moko for the loss. I will first dismiss · as unrolin;blc the eviden,cG of Anc,tory Kiduli (DW.l) that he saw tr1e appollont ~lter Cine cf. the receipts en 6 Ncvcmbor.. Had ho witnessed such n tlJ.ing hG surely would have reported tc someone in nuthcrity o.rid cffered himsGlf-fcr tho prosGcution,, He did ncthing of the kind until 20 December, 1976 - two years lnter - wh~n giving GVidGnce for Chand€:. Ev0n thc.m, he n0ver mentioned the episode ·during his evidence~-in-chiGf, or during crcss-exo..mination by tho - appe:11ant, but did so later, as if by rn r.d'tcrthought 9 in crcss 7 oxcimin:J.ticn by the prosecutor. Mr. Kiduli similarly worked under ·charide and it is not difficult to see the crisis he was going through. · We are 'therefore left with the word of Chande against that ·of the appellant., . Who was to be b.elieved? Let -'Us take the · theory that the appellant lost somE? of the rece•ipt~ and forged the rest to cover up his neglige·nce •. Chande had taken an- imprest of Shs. 700/= which he was rec;:_uired to retire. · ·According to .him, "I used up the safari imprest in the sum bf dhst 700/=. to the finish. · I was g'i ven cash sale receipts. whenever I used. the money for food and accomodationc II ·rt can be inferred. from this that the _receipts he gave .to the appellant added: 'tiip 'to Shs. 700/= for, indeedf he had earlier said that 'the appell'arit "forged some ·of the cash sale receipts in order to reach the figure of ~ I'.' C: / ., _) 3 Shs. 700/=. ,; Surprisingly, .tov,ever, the ten receipts which the appellant allegedl7 forged and attached to the voucher did not add up to Shso700/=~ The added up to Shs.315/50. The motive of the alleged forgery was there1:·ore, not established, What is more inte:i."'·esting is that the Gvventy receipts received by the appellant, as shown in a tabulation behind exh,, C, a.1d marked exh.M~ actually addec1 up tu Shs.700/=, (I take it that the appellant received tv-renty j_~eceipts only for Chande pretended not to know how ma'.1.y they were)~ This was in keeping v-vi th Chande 1 s evidence that the entire imprest was accounted for on these receiptsa However, this fi 6ure of Shs,700/= is arrived at by taking into account the forged figures on the ten receipts but not othervdse ~ It therefore appears to me that the t-vventy receipts were given to the appellant with the ten al::".:'eady forged. Probably even the other ten whict. vrnre lost were equally forged. One may in fact wonder what the appellant stood to gain by forging any of the receiptsa It is in fact Chande who stood to gain by the forgerieso And as ~-t appears that the receipts were forged before they were received by the appellant it is more likely tl:...Jl not that they were for.god by Chande. There is therefore considerable doubt which vmighs in favour of the appellant. For this reason I will allow the appeal on the fire~, thirc1 and fourth counts and set aside the sentences thereono In the -:~enth ~ov.nt the appellant and Chande were charged with uttering. It ';,as alle~ed that they uttered the forged receipts to }if::-. Bw.1.ku (1'1.7. 6 1 • The Gvidence is not consistent as to who took the voucher and the attached receipts to the office of the District Accountsnt. Chande said they were taken there by the appellant while tl,.e appellant said that after signing the voucher Chande himself gave the documents to a messenger who took them to the off:i_co of the District Accountant. This messenger was not called to clarify the position. Wlr. Bunlru himself d..Ld not know who deli rered the codum mts. He said that he happened to drop in the office of -'c.he District Accountant and there he was shmvn the voucher and the receiptso I11r. :-usira (PW.5) who vrnrked in this office said he only "discovered" the presence of the documents and unequivocally stated that he did not know who had brought them there. There is therefore no evidence that the appellant personally took the documents there. It may well be true that they wore taken by the messenger on the orders of Chanda for it was thG latter who had exhibited tremendous anxiety in retiring the imprest. I find, thercfore 9 that this cov.nt was similexly not proved against the a.ppellant. The vonviction and sentence are accordingly quashed. In summary 9 this appeal succeeds in its entirety. The appellant should forthwith be released from custody 1 if this has not already beou done and unless he is further lawfully held. TiJWANZA (Sgd.) Ko S. K. LUGAKINGIRA 17th Octoborg ~971 JUilGE