19781113 TZHC Dodoma

• IN THE HIGH COURT OF TANZANIA AT DODOMA .' . APPELLATE J1JRISDICTIQN • HIGH COURT CRIMINAL APPEAL NO. 56 i.OF " 1976 c/f m Criinal Appeal no. 50 of 1978 .eRIGINAL CRIMINAL CASE NO.•23'2 .,OF, 1977 (c' THE DISTRIdT COURT OF MPWAPWA. DISTRICT ALP;MPWAPWA Before A. M. Sanga. . . . District Magistrate .. . . •. . •. .•. 1.MAULIOI DENGU. Apellnt 2. BURTON LUMAJ4B0 :. (Original Accused) Versus •' 'THE REPUBLI'C. .0 • . . • . •.••. Respondant . (origin1 Prosecutor) charge: stealing by servint c/s 271 and 265 of the Penal Code. JUDGMENT CHIPETA, J. The. apeii.ants,.. Maulidi Dengu., and Burton Lumanabo, were jointly charqed wath t 0 cthcrs, namely, Moharrd Mwirnco, who hs app -irently not ppal d, 'md Musa Chiloya who w'ms acquittd, with th offence pf s'e cling by ervant: c/ss. 271 and '265 of the Penal Code. On conviction, they were each sentenced 'othroe (3) years imprisonment. The appilants are now appaling "tohis court, and their appeals have been consOlidated. The. cervictons were founded on the fclluwirq (avidonco. Mohamed Mwirando, who was the first accused at the trial, and hereinafLrreferred to athefirstcccu.ed, was an office attendant in Comworks office at Kongwa. The second appell nt, Burton Lunainbo, who was the second accused at the trial,"and. hereinafter referred to as the, second accused, was a clerk tesponsibie for the issus of stores and processing of all documents relating thereto - including issue vouchers and gate passes. The first appellant, MaulidiDongu, who was the 3rd accused at. the trial, which descripUonI will retain, was a driver iz that same office.. .. on 5/12/77:, one Jüma Swalehe who ws a Comworks forepian atKongWa, was•issued with 200 litresefUiessel by the second accu'sd, and P0W.6 sgnod the issue vouchdr. This diessol was collected by a vehicle regIstration' No. 5Th 1686 on thc authority of one Kndo •S.alum (P.W.5) who was the bfficer in—charge of comw6rks at kongwa. P.W 0 6: took the diessel to Kibaigwa village where thre is a Cornworks Canp. - At about noon on 8/12/77 the first accused arid the third accused went to one Neneiwa (p.w.3) who is a mother—in—law of the firstaccud. The first accusd: then .requeted P,W. 3 to allow in her house. AS she did not suspect the • w. 3 first accused/to do so. So the first and thirdaccusd perons allowed took the dies1 and kept it.flPeW.3 1 S house. the first.. accused At about : 2.30..P.'n.: on the same day, one Saulo Makangira (P.W.1),.• who was a member of:people's mi1ita,.ws. . •../2 -2- informed by a vi1lage chairman that two 'drüth$ of diessel had h..en unloaded at p.W,3 1 s house. So P.'W.l and Live other members of the people's militia proceeded to PW.• 3 5 house where they took cover outside the house. Meanwhile at about 8.00 p.m. that same day, one Jeremia Chiongozi (P;W.2) met the first •adcuthed iho. asked him to go with him to'..P,W;3 1 &.house to go and collect aload for the first accused'.''P,w2 innocently. bbllged, and the twç.pf thorn went to p.W.3's house. - While they were inside the house, P.W,l peeped through a window nd sa the frst accused poura1g diessel into a j rricen from a drum. The first accused then handed the jortican to P.W.2 and told P.W.2 to carry it. As they went out of he house they wore • arrested by . P,.W.L. and-- his •-teQm. When the books of the second accused wre checked it was discovered that the gate pass and issue voucher of 5/12/77 for 200 litres of diessel which had been collected by P.W.6 had b,un altar?d to .çe,ad.,400 litres.' So, on or abcut'l0il'2/77', thu, second and thjrd accused persons were also arrested. The"very next day, the second accused wrotc,a note to P.W.6 requesting P.W.6 to go to Kibaigwa villag€. nd c'qu—st Comworks staff there to say (which would have ban a lie) that they had received two drums, and not just one, of diessel. P.W.6 received this note but did not accede to the request The not.. was tendered in cou.t as an' hi-bit. In his defence, the first accused sa '€*e was sent by the second accused to take the die ss1. 'So' 'he and 'the third accus d tok the diessel to l p.W.3's hoUsL. Lat r, ofl fl instructions' of the :seuhd' accused, he (the firt •accuoed)' went to one Mwishehe and tdld him to go and coilcdt a diurn of die ssel. Th said.Mwishehe, gave the'fist accisOd a" bhy. The two thdn W.,nt to P.W.3's house where , they were arrested, In his. unsworn statement, the "second' accus,d merely said that police arrested him on 10/12/77 and seized his hc.uks. In his unsworn statdment, the third accusod Said that it was the s cend ac us d who told him to take the di ss. 1 from the stor to P.W.3 1 s house. The l' arned trial district magistrate ccc. oc.o the prosecution's evidence, and rejcted the accused persons' 'hnre denials, i-Ic accordinglyheld that' the accused persons h,"ic-I stolen th diessel, and so ccnvictd thm as charged. I can see no reason to differ. All the accused pLraons were ?mployes of Cornworks. t Ona.. the evidnc, it Js quite clear th.at:oach of 'themuqht to have known, and did' in fact knoW, that the taking of diessel from the Comworks storo. to, a private house was improper and, indeed, unlawful.' And yet fl(flQ of them reported the 'motter to anyone in authority. "The first acctis.:dts animus furandi is demonstrated furth r by th€. fact that h w'-s a party to thu landestine attempt't () dispose of the di'ssol' to a private person. As for the second ' accused,• his animus fur , andi, is demonstated not only by the fact that' he falsified the' ro'1vant documents., but also by the, fact that he tried to improperly influence p(tential witnesses. Credence to the monumental prosecutionS evi.ncc' 'i's• lent by the statem nts of the first and third accused prs ns. — 3 — - hrl circutnc.-s, th-refore, it is plain that the two apellants and the first accused were wLrking in concert. The convictions, therefore, were nevitahlc. Three years imprisonment was the statutory minimum That b.ing so, the apiellants cannot be heard to cmp1ain against these sentences0 In finu,these appeals are dismissed in their entirety. DODOMA ki /( B. D. CHIPETA 13th November, 1978 JUDGE