1977N

IN THE HIGH COURT OF TANZANIA AT DODOMA · APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 100 OF 1977 ORIGINArj CRIMINAL CASE NO... 192 OF 1976 OF THE DISTRICT COURT QF KONDOA DISTRICT AT KONDOA Before M. A. Upaga • • • • • • ., • • a •• ·• • District Magistrate RASHIDI S/0 JUMA NYUNDO., • o., o o o a •••• o a o Appellant (Original Accused) Versus· THE REPUBLIC~ o•o•oooo 0 o 0 0 0 • 0 • • • Respondent (Original Prosecutor) -- Chn.rge: count 1 Conspiracy to cornmi t Penal Code .. a felony c/ s 384 of the Count 2 stealing by public servant c/ss 271 and 265 of the Pen al Cocie .. JUDGMENT CHIPETA, Jo The appellant, Rashid Juma _Nyundo, and two oth,2rs, namely, Jumanne Ally, and Rajabu Yusufu, were jointly er.urged ,., (in count ·1) with the offence of conspiracy to commit a felony · c/s 334 {;)f the Penal Code.. The appellant was 'f.urther charged (in count 2) of the offence of stealing, by public servant ·c/ss 270 aJ?.d. 2•5 of the Penal Code,, while Jumannc Ally and Rajabu Yusufu were jointly char0ed (in count 3) of the offence of Jealing c/s 265 of the Penal Code. All the accused persons weri'acquitted in respect of the first count, and the third accused was ·also acquitted on the third·:cou:-1t. The appellant was convicted in respect of the second count, and was sentenced to five years imprisonm8nt. Jumanne Ally, the second accused at the trial, was· convicted in respect of the third count, and was _sentenced to two years imprisonment.. The appellant now appeals. For convenience, I shall hereinaftP.r refer to the appellant as the appe·11ant, and to Jumanne Ally and Rajabu Yusuph as the second and third accuse~d, respectively. In· hrief, the prosecution I s evidence was as follow·s: : the appellant was a clerk employed by the now defunct .Central Region co-operative Union, :letter known by its acron~ r:.R.c.u., and he was staiioned at Kwamtoro village, in Kondoa districto As such clerk the appellant used to receive large amounts of money from c.R.c.u. which hP used for buying produceo He also used to receive revenue for c;R.c.u;. which i t was his duty to 1 remit to the bank from time to time at Kondoa. For these purposes the appellant used. to maintain b.ooks pf accounts showing the amount of money he had at . any particular .time ami the produce he had bough to -1 ,. Accofding to his books of accounts, by i/3/76, the appellant -had· a shortage of shs. 40 1 959/15 in cash, and a shortage of goods worth shs. 11;992/6;. On 6/3/16 the appelL.i.nt boarded a bus at Kwamtoro on his way to Kondoa town. On the bus were several other passengers, u/3 2 among them the second accused who was sitting not very far from the appellant. The appellant at the time had a brief-case with a secure zipa At one point in the course ·of that journey, passen0ers disembark~d and walked on foot in order to enable the bus to go up a hill more easily. Later all. the passengers boarded the bus again. As soon as the bus started to move ah..:ad again, the second accused snatched the bag from the appell ont and quickly jumped off the bus. But as he did so he fell ctown on thG ground only 3 or 4 paces 2.way from the bus., The apr-.::11 ant raised an alarm, and the bus conductor, one Maneno (P.W.l) immediately followed the second accusE!d and caught him while the latter was lying on the ground still holding the brief-cnse. TWo oth(,,r passengers, Hamdani (PoWo2) and a ward secretary (PoWo4) also jumped out of the bus and went to assist P.w.1~ The brief-case was returned and was given to the app~.llant on the scene. All eye-witnc::sses tc;stified 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.w~2 that he had money in the brief-case, but he did not say how ·much i t wc.s, nor did he make any attempt to open it to S(,e if the said money was safe. In his capacity as justice of the peacu, P., W.,4 arrested the second accusE~d, and on arrival at Kondo a P. W.4 Rnd the appellant took the second accused to police stc1.tiono At the police station, the appellant alL!g~)d that he had over shs .. 40 1 000/i= in the brief-case at the tirr..:~ the second accused snatched the brief-case from him. But when the brief~~ase was opened at the police station, only cash shs. 4 1 058/05 and a cheque for shso l, 389/= were found therein. When asked how the rest of the money got stolen or lost, the appellant gave conflicting explm1ationso So the police officer who was interrogating him decided to arrest the appellant. On 8/3/76, the appell.:mt made an extra-judicial statement to a justice of the peace (PoWo9) in which he said that on 6/3/76 he took shs. 46,(87/25 so th~t he could go and remit it to the banko He duly filled in a paying in slip, and then went and board2d the bUso 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 knifeo The second accused, howev2r, fell down outside the bus, and Maneno caught him, and so they a:eoovcred1. the brie-:i- case. But the money, which was ih one hundred-shilling notes) could not be foundo On 15/3/76, the appellant made anoth:..:r extra-judicial statement to another justice ··.of the peace (P.,W. 7) in which he said that he and the s<:::;cond and third accused pc:rsons had conspired to steal shso 3,,84'0/2·0, that h,~ gave that money to the third accused, and that they had then arran~;c::d that the st:cond accu.sc:d would snatch the brief-case from thE! appC!llant on the bus and esaape., In his do£ence tho ap,.:eJ.lant retracted bo~h extra- judicial statementso He said that he had all the money when he boarded the bus, and that the money got lost after the secohd accused had snatched the briE,f-case and jumped out of the bus. He added that he announced the. fact th.:it the: money was missing while they WP re at the scene, but that hE:! himself did not know h: . that money and thE~ paying in slip book disapp~;ared at the sceneo · 3 The second accused al.so made an extra-judicial statement. In that statement. the second accused appears to suggest that hit' 11\ind went blank and that he j"1st noticed th.')_t he was being lifted on to the bus. · . In his defence, however, the second accus2d made a clea.n breast of it. He told the trL:i.1 court on oath that he, th~ gppE,llant and the. third accusr-~d h,1d conspired to steal the money_: they had arranged thnt the appell :mt would k-'ep shso 4 7 ,~O'V= in a bag and all of thc,m would travel together on the bus,. When they c<1me to a hill, the passen<Jers would walk on foot and the second accused ,10uld then snatch the bag from the appellant, stab him with a knife, and run off into the bush. The appellant would report to police who would L,ter reL: ase him, und the thn-'e would meet at Dodoma and share the bootyo Th(} second accused went on to tell the trial court tho.t wh<:::n. he and the appelLmt -were travelling on the bus, he rec..:?iv•:~cl. th.:! bag from the appellant but as he jumped out of the bus in a bid to run away, he, fell down on th!c:! ground and the bag was immediately r,!cow~red 'from him. The second accused added thu.t he did not stab the nppell.:mt as agreed b~:cause, being a :no'll!ic~ at violent crimes, cocrage fc1iled him at the time, and th; t he, only agreed \ to take par;:.:t beC,3.use he w;,s lured by the 1 arge. sum of money (Shs. 1s·,ooo/=) ._which he had b,-,en promised, an amount of money which he had never possessed in his life. After examining the nature and contents of the retracted extra-judicial statemf~nts of the ap;:l<:.,llant, the learned district magistrate was not saf.isfied that they were voluntarily made, and so he chose to -ignore them in considering the cnse aqainst the appellanto I will pause here to remark that the learn~d district ma9istrate was right in irrnoring the extra-judicial statements made by the appellant.. To start with, there was evidence that the appellant was subjected to violence and sustained an izijury before he made one or both the statements. SE:concl.ly, the two statements, the second having b--:en made a wGek aftc)r the first one, differ materially. Indeed, oni=.;: wonders why the appellant should have made two extra-judicial statem1:mtso In the circumstanc,=s, I think that th(,re was good reason for suspecting that the extra-judicial statern.~nts Wi.:.!re not voluntarily made; and if they were voluntarily made, the circumstances strongly suggest that they were not trueo The extr~judicial statements, th(!refore, were ei th-~r inadmissible on the ground that they were _no_t voluntarily made, or, if admissible, th ..~y were of little or no evidential value inasmuch ns they cannot reasonably be said to have b,::en but true. Th,~ le ;:i.rned trial m,,gi strate, however, accepted the evidence of P.W,l, PoW .. 2, and P.W.4 as truthful, and so found as a fact that no money was dropped at the sc2n,, 1 and that the appellant did not have all the shso 47,2C6/20 in the brief-case at the time the second accused snatched i t from him.. He accordingly r-=jected the app,)llant' s defe':1c8 and convicted the appellant as charged on the second counto The learncid counsel for the appellnnt strongly submi.-tted that these findings of fact are perverse. In his submission, had the learned district magistrate considered the fact that many passen<1ers surrounded the second accusE;d at the scene and t: . .::-t there was possibly confusion, he would have given the appi.)llant the benefit of the doubt. With respect, I do not agree. The learned magistrate considered the evidence of the, eye-witn12sses, the circumst.mces in which the bus incident happened, the fact that the accu~;ed was immediately arrested and the brief-case promptly retrieved intact, the fact that no money was s~en th2re, and that the amount of mon,~y was considerable. Th(-! se were not 4 irrelevant matters to take into account. Two other pieces of .evidence lend crcdc:nc,; to the finding th,1t no .money I . was lost at the scene: the first is the evidence of Po W,;O which is to the effect that as per app"'llant ts books of accounts, the appellant had a shortage of shs. 4·~ 7 959/15 in cashr as at 5th March, 1·976. If the evidence of P.W.5 is beli1c)ved·, and I see no reason for doubting it, the api,ellrint could not have had ahs 47,2.06/20 on the morning of 6th March, 1976, unless he had made good the shortage overnight. The second is the conduct of the ap, E::llant at the scene as described by eye-witnesses whose evidenc0 the trial magistrate accepted: the ap 1 ,ell ant n1..,w;r 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, tho app0llant nev~r said at the scene that any money was missing. Wh~n these eye-witnesses dt~poscd to theS(-'! facts during the trial, the appellant never put it to any of them his allegation that -he told all the pc1,:sengers at the scene that th2 money w.:J.s missing. That apart, the second accused·, s confe:, ssion is not \ irrelevant. It is true that a confession of a co-accused t;annot be the basis for a conviction of anoth,~r co-accused for i t is well settlE-)d that a conf,2. ssion of an accused pc'.:rson can only be used as lending assurance to other cvid1..-:nC(:.; ngainst the co-accused, evidence which nmly falls short by a very narrow margin of thE:! standard of proof necessary for a convictiono In this case, however, the confession of th~ second accused, which implicates the appellant; lends crede:!nce to fhe evidence of P.W.1 7 PoW.2, ?.W.4, and P.W.8, which evincnce; dare say, is from a very •trustworthy source • /i In all the circumstanct"s, thc:::refor,.::, I can find no reason to impugn the findings of the learned district magistrate., I would agree with the learn-.:!d stah.! attorney that the evidence· p1.oved beyond reasonable doubt thnt the appellant is the person who stole the money as all2ged in the s0cond count. There is, however, one legnl question to which I must address my mind and which; regrettably; and with r12sp"-'ct, neithe:r the learned counsel for the defence nor the learn8d state attorney for the Republic c · · • · • 1 found it fit ei·i:hE,r to argue. or allude to. The charge in respect of thu second count is 11 stealing by public servant c/ss 270 and 265 of th(:'; Penal Code" The appellc1nt was an employee of a registE,rud co-operative society. Is such an employ,-ie 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 employ .. G is not a "public servant"., A co...;operative society or union is.neither a local authority, a governm,mt departm.:.:nt, nor an institution of the Community; nor is an appointme'1t of an employc:e thc~reto within any of the categories menti¢ned in section 5 of the P_enal Code. The appellant.; then:fore, 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 corr12ct charge ought to have br.·en one of stealing by servant c/ ss 271 and 265 of the Penal Code, or one of simple thc~ft c/ s 265 of the Penal Code. Now what is the proper order to be madL! in the circumstances? Under the provisions of section 181 of the Crim1nal Procedure Codf!, where a person is charged with an off0nce consisting of several particulars, a combination of some only of which constitute a. complete minor offc:nce, and such combination is proved but the remaining particulnrs are not proved; such person may be convicted of the minor off1:mce 5 ... although hP. was not ch,-:irged with it. The constituents of the charge to be substituted, however, must be such as must have given the accus.~d suffici(->.nt notice so th::it th:] substitution must not bE: said to have til.ken the accused by ·surprise v..nd so led to a failure of justiceo · I am not aware of any decision where a conviction for stealing by servant c/ss 271 and 2i5 of the~ P'"nal (:.):12 has been substituted for that of stealing by publi~ servanc c/ss 270 and 2(15 of the Penal Codeo In the case<;~<J.~urg Pennyll Lekajo v. R. (1967) H.c.:e. n. 276, this court (crd'ss, J.) took the rare step of substituting a conviction undur sections 270 and 265 of the Penal C6de for that of stealing by servant c/ss 271 ;and 26!F of the Pen,tl Code.. But the common practice ·s0ems to be · to. substitute slmple theft for an offence undc.:r sections 270 , and 265 of the p,,nal Code. The problem, it appears to me, is how to determine whet constitutes a minor offence in relation to anoth,::r.. In my view, the elements of the particular offences in, question-: and the penalties for each of them arci thf~ determin,mt fuctors.. Now the constituents of an offence undt;r sections 271 and 265 of the i. Penal Code ure th~ same as those for an off~nce und~r sections 270 and 265 of .the Penal Code, but in the L.1tt0r th.J prosecution has to prove further that the _pccuse<t w-1s n<t-ftmer.:::ly a servant but was a publi.c servanto Sirl·'<:~:'"M{riirr(~in'1se 1 1 ritc.:~cc~s (consequentH,.l anQ. Incidental Provisions) Act, 1972, an off,-'.!nce under sections 270 and 265 of the Penal Code ·is now punishubl1: with up to fourteen years imprisonment, but that under sections 271 and 265 of the Pen.al Code is punishable with up to seven years imprisonmento . The penalty provisions, th2nafor0, m<.1ke it plain that an off,mce under sections 271 and 265 of ·i:.he Penal Code is minor to that under sections 270 and 265 of the P~nal Code. On these grounds, I see nothing wr0ng in principle in substituting a conviction under sections 271 u.nd 265 of the Penal Code for that under sections 270 and 265 of the Penal /more so Code, /leaves no doubt that the apPell.,nt in this case must have -when the bE,en given suffici(~nt notice of the facts and circumstances evidence constituting the offence of sb::aling by servant c/ss 271 and 265 of the Penal Code. For these reasons, I hold that the conviction under sections 270 and 265 of the Penal ••Code in H:!Sp.cct of the second count was impropero It is accordingly quashud. But und0r the provisions of section 181 of the Criminal Proc12dun, Code, I substitute thcc?refor a conviction for stealing by sorvant c/ss 2 71 ;;ind 265 of the Penal CodE~ o The senb-mce of five y ars imprisonment will remain 00 undisturbed as it is the minimum prescrib~d by statute. In respt:ct i;,f '!ihe se5=ond accused who, wis(~ly in my view, did not app,~al~.'Uk~ ~e"htekced to two y::,ars imprisonmento That sentence, with r'~spect; was illegal in ~hut it offended the provisions of the Minimum Sentences Act, 1972. The property stolen wr1s that of a Sf ecifi(,d authority, and the value is in excess of shs .. 5,eoe/=. The second accused, therefore, qualified for a minimum sEmtcnce of five y .,ars imprisonmento Since hi:? was a first offender, and in view of the obvious fact that h8 is feeling remorseful, I do not think that he deserves a day longer th·1t the statutory minimum sentence. As no amount of eloquence in mitigati0n would save him from the rigours of the mandatory statutory provisions, i t would be a sterile exercise to call upon him to show cause .. why the sentc:nc0 - 6 - . of two years imprisonm'-mt should not b2 enhuncc!d., I will therefore dispense with such an exc.:rcise. Accordingly, in exercise of this court's..revisional powGrs, I set aside the sentence of two years imprisonment imposer;l,on th2 sc1cond accused and substitute tht.:refor one of five y,•.ars imprisonmento Save as indicated herein,. this app-::al is dismissedo DeliV(:!red in open Court at Dodoma this day of 19 77 .,, Mro FoSa Charnl':rakare - Counsel for Appell~nt Mro Loum-Ojare.- State Attorney for the Republicft