19790524 TZHC Dodoma

#/4S f4LY'' N THE HIGH COURT OF T.A3ZANIA AT DODO1A CRBAL APDEAL No. .159 OF 1978 CF., CRIMINAL AF ~ EAI, No. 17 OF 1978 ' • :. •. (Original. Criminal Case No, 201 of 1978 of the District Court of Kondoa a Kondoa) Before: C.P. Urio, Eq., District Magistrate.. • 0 JACKSON 1UYATWILU . . . . . • ) iersus . EREPILIC , • • . . • . . ) RPOTDTT JUDGMENT JONATHAN, J. •0 • . The two a n pellantm whe petons.are conaclidated in this judgment were charged jintly with another accused, described as the second accused, with stealing'by servant, the charge JlO(ing that, the accused persons as the store clerks employed by the National Milling Corpora.tion at its • Kondoa Branch between Ma/ 15 and June 30, 1978..jointly stole 6,356 kgs of beans valued at shs, 21,113. As at the date of the commencement of. the trial tiie second accuãed had absconded so the chatge in so far as it :rOl'tO(1 to 'hi7n was withdrai for the time being. The trial then proceeded to conclusion against the ap?llants. In the event, they were conv1ctd of the offence but their guilt was found to exterd only to the si. of shs. 3,285 9 it appearing to the cowt bhat.the second accused had been responsible for the loss of shs. 18,918- 0:worth of beans. At the hea'ing of the apeal after hearing both Mr. :Chambakare for the first ape].lant, IDDI 8/0 ALLY and Mr. Nsechu for the Republi.c, I.3wed the of the learned advocatets clierand ordered his releae from custody. -• I reserved my reasons for so orderin:,md I row propose • to give them as well as deal with the .... T cal of JACKSON '0 ••' s/a MN YATWILU. • • • 0 • The three accuse4, as already stated, vere store clerks, • • of whom IDDI was the in—charge. The weighing and purchasing of crops would however normally be done bt the other accused 0 only and his main responsibility was to supervise •veT their • work, 2 A purchasing transaction entailed the coapletionf three records of that branch. The purch.: ih.; clerk upon weighing the crop would write out a rec'ipt ci d. "WelEht and Tally Note Receipt" giving al the jrtc '1 'e o that transaction, not excluding the ci of the weihing clerk an that of the farrrier, Upon the latter 2reont1n.. such rccoiit to the cashiur 6. receipt called "Ptty Cash Voucb.cr" would be completed and the farmer paid his duo. At the end of the day all the transactions of that day would b rofleoted in the Ledger of that branch. This is a comorchoasive roqrd showing not only all the purchases of the day bimt also stating if any crops have that day been transportal f'rom.that Store to the Corporation's Regional depot at Dodoma and, if so, giving the amount of the bens loft behind. Thoro was. however no evidence of who was supposed to enter the relevant particulars in the Ledger. It was the prosecution, case that JACKSON weighed some of the relevant purchases. Altogether, they were of crops worth shs. 3,285. The particulars of all those trausaçtios were however not entorodiñ theiedger•. All this, apr'.ears admitted by him in his defence. lIe says, howeyer, that he kept in the store all such crons s he bought nd u t they were intact when he started has leave on Jun 28,1973. The defence of, IDDI was also very brief. It wos to LF ct that the purchases shown in those rocipts wore fictitious t"at the crops purportedly bouglY had not in fact reached, the store. He flatly denied rsponsibilit3r . .' The evidence against IDDI was weak., It was little more than that he had -the overall char *et.offico. and that, a though he was away on leave at the ro]:overt times he had not handed over his duties to anyone.. It was however not suggested how any handing—over by him would have rod the loss or theft that 'occurred subsequently durin.g his ahsence on leave, while there was no indication of whom to he shouJd he handed over his .responsibilitie. Mere nagl..cot of duty on his part could not in any case be a sufficient ground for. c.onvc.ting him of theft. .At best it could only have constituted the offence of occasioning loss to his employer c/s 284 A of the Penal Code, with which he was however not charged. . There is also a further reason for not upholding his • conviction, and this extends to the case againstJkCYSOIT as we1l.Ther was no evidence, as I have said, pf whose duty . it was to enter the Ledgr enh it is not possible to say if the non—entry o the rd evant ouxcb ices o ttrfoutable to ether appell'rt. (7 C.. -3 - •t 1c.t' .ifloizioe is the absreco of evidence of any physical stock—taking having been carried out in order to be clear whether the shs. 3,285._worth of beans were in±'act missing, and all the checkin, ses to have been confined to the documents. That being the case.' find the claim of JACKSON that all he boughtwas put in the store has not been shown to be false. There is of course the suggestion that he had issued receipts to bogus customers, but this is not borne out by any evidence. Their names having been disclosed there ought to have been some investiga- tion to show if they ever existed and in anycase the cashier who appears to have paid them might have been called to say if he had identified any of those p',y'o. It may readily be presumed, therefore, that the mc:y had been paid to genuine customers. For the foregoing reasons, therefore, the appeal of JACKSON, like t 1 .at of IDDI, is hereby 'hewed and. it is ordered he % too be released from custody, that is, if he is held there only in connection with this case. P.M. JONATHAN JUDGE Delivered in court this 24th day of I.ay, 1979. 4,t A f ~ ~ P.M. JONATHAN JUDGE