19780110 TZHC Mbeya1

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' ' ' ' ' '' DI'Itiiidiat SflS..1e4 : dI1?ITifaV m ULODIM '(airpvwuoir 'x auo pquto pqs øc1WO JO cpo PT14RE etj JO £L6T Jo ILl OJ[ PFVp IvuTMT;cp I1 tXT2TZO) 461 ao 9 6 'oji rrvJraav TVMflAIIUD NOIJ3IcfSIUfl$ U1 ,7111MV vflli 11 ZN7731 do LPM00 UDIH I1.111ji i!I ofgrmnding machine for the village. The appellant carried out the order faithfully. Later, however, he failed to account for the proceeds of the sales. For reasons I cannot understand, the prosecutor charged him with the theft of the bags of fertilizer and not with the theft of the money realised from the sales. This was a fatal decision. As was conceded by Mr. Mtaid., Counsel for the respondent, the charge was misconcoived. The appellant had not stolen the bags of fertilizer. He had sold sold them as ordered by the village organ. If the appellant had stolen anyhing, it was the money paid by the buyers of the bags of fertilizer. On this eround alone I was of the opinion that the conviction on the second count was not sustainable. I therefore ' quashed it. I turn now to the appeal against the conviction on the first count. Here, again, Mr. Mtaki was constrained to concede that the evidence which was laid in the scale against the appellant did not warrant the conclusion the learned trial magistrate arrived at. The prosopution and the defence were at one that the apiellant had received shs. 1,150 from one of the village officials. The money had been contributed by villagers for the purpose of buying a village grinding machine. The burning question was what had happened to that money The prosecutor invited the learned trial magistrate to answer that question by holding that the money was misappropriated by the appellant. Theappollant, on the other hand, invited the learned trial magistrate to hold that the money was spent in buying fertilizer for the villagi. The learned trial magistrate accepted the prosecutor's invitation. With respect, I do not think that on the evidence laid before him he accepted the right invitation. It is plain from the evidence that the accounting system at the village was, to put it mildly, chaotic. The evidence of PW.10, an officer in the Ujamaa and Co-operative Department, left no grain of doubt about that state of affairs. During his examination- in-chief the witness said 1 in part: "I found the following shortcoming. The collection bookfor sometime remained with the secretary and sometime with the Theasurer. I found the books with the treasurer. I have forgotten his name. Their recording was also bad.tt It was commOn ground at the trial that a fairly big quantity of fertilizer had boon bought by thovillage. The appellant claimed that the shs. 1,1504 was part of the money which was used for purchasing the fe±ilizer. This assertion did not entirely stand alone. In the course of his testimony, PW.4, Lameck Marko, said: "We had about 30 acres of the village shamba. .13 One Mwonda was responsible for the supply of the fertilizer of the village. I do not know all about the money in the village. I saw shs. 1,1271= the accused gave to Katihu Kata." Was the shs.1,127/= part of the sl'is. 1,150/0 One gets no answer from the record of the case. During the hearing of the appeal Mr. Mtaki pointed out that there was so much confusion about the collection and cqendituxo of money at the village that it was not possible to say with any duoe of certainty that the appellant had stolen the shs. 1,150/= or any other money. I agree. Going through the record of the case one is left with the 1ti 4 impression that the lirosecutor himself was not sure as to how he could prove the charge. He decided, as a result, to heap in the scale ainst the appellant any evidence that was available and leave it to the court to make sense out of it. That approach was unfair. It made the court's task unnecesarily more difficult. For the reasons I have given I was of the view, at the conclusion of the hearing of thapoal, that on the evidence before him the learned trial magistrate was not entitled to compel the appellant to carry the cross of B • A • SAMITTA tt JUDGE Delivered in Court this 10th day of January, 1978, in the presei of Mr. I4wanyika, Counsel for the respondent. B • A. SMLLTTh. JUDGE