19800606 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM HIGH COURT CRIMINAL APPEAL NO. 201 OF 1979 ORIGINAL CRIMINAL CASE NO. 299 OF 1978 OF THE DISTRICT COURT OF DAR ES SALAAM DISTRICT AT KIVUKONI DM. BEFORE M.14.J. LUGURU, Esq., Resident Magistrate. ( F RED NGINGITE .....................• • APPELLANT (Original Accused) Versus THE REPUBLIC RESPONDENT o a a a a a a o a a a a a a a a o a a a a a a a a a (Original Prosecutor) CHARGE: Stealing by Servant d1ss 271 and 265 of the Penal Code. JUDGEMENT KIMICHA, J.-. This is an appeal against conviction and sentence. The appellant in this case Fred s/o Ngingite was convicted together with the 1st accused in the lower court whose appeal has been allowed by this Court, of stealing by servant C/s 271 and 265 of the Penal Code and sentenced to three (3) years imprisonment each. The judgemen€ of the lower court is reproduced for easy reference, JUDGE NEWT "The two accused persons in this case namely Almasi Uledi - (1st accused; hereinafter) and Fredy Ngingite (2nd accused hereinafter) are jointly charged in the 2nd count with stealing by servant C/S 271 and 265 of the Penal Code while the 1st count is preferred against the 1st accused only which is Forgery c/ss 334 335 and 337 of the Penal Code. Both accused persons pleaded not guilty to these charges. The prosecution commandered a total of eight (8) witnesss. The 1st accused made an unsworn statement while the 2nd accused made a sworn statement none of the accused persons had a witness to call. 4 ... 2- From the evidence or record, it is far from being in dispute that the two accused persons were employed and worked for the Tanzania National Milling Corporation (to be referred as National Milling Corporation hereinafter). The two accused persons were stationed in Dar es Salaam and worked, as clerks in the carning Division, of the National Milling Corporation and their duties involved' among other things the issuing out of goods to customers who have bought them from the National Milling Corporation Stores. It has also been established' that on 21/4/78 100 cartons of orange squash worth about shs. 8,3651= were stolen from the National Milling Corporation. 'On 21/4/78 Fatuma Athumani - PW.2 the clerk in charge of stores, discovered that 100 cartons of orange squash were missing, according to her records there should have been 120 cartons in store and when a customer came to buy 70 cartons and when' it was found out that there were no enough cartons to meet the 70 catons demand then PW.2 sent one Anatory Simon - PW O 3. PW.,3 went to the gate where he found a gave pass showing that one Selemani Yusufu - PW.4 had bought 100 cartons of orsnge suash. PW.4 asserts that he was sent to buy 1 bottle of orange sqUash by theIst accused on 20/4/78 and'after obtaining the cash sale receipt he handed over to 1st accused Almasi whom he maintains went to collect the goods0 At the gate PW.3 found that a gate pass in respect of goods sold to and in the name of PW.4 had been issued and showed that 100 cartons of'orange squash were issued and not one bottle as shown on the origtnal cash sale and that the goods were carried in a motor vehicle, the motor vehicle Reg. No. were recorded on the gate pass and, ••were in the 2nd accused handwriting 0 With these suspicious,. the matter was reported to the Police and D/Cpl. Abrahamani - PW.1 carried investigations. In his investigations PW.1 discovered that the cash sale receipt was altered to read 100 cartons of orange squash instead of 1 bottle. He seized the relevant documents and sent them to the Identification Bureau at the Identification Bureau one Hamisi All - PW.8 examined the handwriting and made his report tendered as Exhibit 'F', In his report PW.8 says he has discovered some, similarity in the handwriting of the relevant document which are similar to the 1st accused handwritIng. As a result of these investigations the accused persons werearrest,' It teas also found out that.the goods were carried in motor ve/ Reg, No. TZ 19042 which was driven by Abdallah Mohamedi - PW/ -3- PW.5 was assisted by Kaisi Kazembe - PW.6 9 - PW.6 says that he saw the 2nd accused who helped them with the loading of the orange squash. With these revelations the accused persons were charged with forging the documents in question and theft of the 100 cartons of orange squash The 1st accused made an unsworn statement stating that he sent Selemani Yusufu to buy 1 bottle of orange squash for a certain person who had approached the 1st accused at his office, having obtained the cash sale and the bottle of orange squash, he handed these to the said person together with a gate pass. Then on 21/4/78 while on duty he heard that 100 cartons of orange squash had been stolen and thereafter with Alfred Ngingite they were arrested and brought to court. 2nd accused in his sworn statement states that on 21/4/7 while in his office he saw 1st accused who told him that hewas going to town and instructed him that a certain person would come to collect cartons of orange squash, he was handed a gate pass which was already prepared. The said persons appeared at 11.00 a.m. and ae&ing the cash sale with the said person as in finding it to tally with the gate pass, he took the said person to the store where the cartons of orange squash were loaded and thereafter he gave them their papers and went back to his work. With that the defence closed its case. As pointed out before, there is no dispute to the fact that 100 cartons of orange squash were stolen on the material date from the National Milling corporation canning division where the two accused persons worked. It is also beyond doubt that the theft was facilitat by the alterations of eash sale receipt issued to Selemani Yusufu - PW.4 who was sent to get it by the 1st accused and that the cash sale receipt was altered to read 100 cartons in place of 1 bottle and as a result 100 cartons were stolen from the said National Milling Corporation stores. It is also beyond doubt that the two accused persons became suspected mainly because their handwritings appear on the documents which had been altered to read differently from the original - expecially the 1st accused whose handwriting appears not only on the relevant documents but also on the altered letters. It is also in evidence that the same cash sale which 1st accused had sent PW.4 to go and get 1 bottle of orange squash is the same which was altered and facilitated the theft of the orange squash, it therefore cannot be a mere . . .14 - —4- coincidence that it has been connected with the 1st accused. On going through the relevant evidence on. record, I find that there is sufficient evidence and the prosecution has proved its case against the two accused persons beyond doubt, I therefore find the two accused persons guilty and they are convicted respectively in the counts with which they stand charged. (Sgd) M.M.J. Luguru w R.M. 15/8/79 1119/79 Before M.M.J. Luguru - R.M. Insp. Karia for prosecution Accused - both present. Machano: for 1st accused. Court: Judgment delivered in open court this 13th day of September, 1979 in the presence of both accused persons as Inspector Karia for Prosecution and Machano for 1st accused. (Sgd) M.M.J. Luguru—R.M. 13/9/79 Previous Record: Nil. Mitigation: Machano: Since the accused 1 claims to have been born in 1962 in his unsworn statement the accused is under 18 years old and that being a first offender while still young I make an application that he should be sent for Medical Examination to certify whether he is under 18 years old. I also spoke to the Probation Pfficer, and he says he will come tomorrow. 2nd Accused: I have a wife and 2 children. The 2nd child is very young. They all depend on me. My father has big family, he also depend on me. My mother has separated from my father, she also depend on me 4, I pray for leniency. Order: Sentence on 14/9/79. Accused to be remanded in custody and to be examined as to age. (Sgd) M.M.J.Luguru - R.M. 4_ St —5- 14/9/79 Court as before. Court: The accused has been examined by a medical officer and found to be 20 years o1d, Machano: The Probation Officer is sick and unable to attend. I was making an application on behalf of the 1st accused that since the accused is almost a y outh,.. Corporal punishment will meet the ends of justice,1 - rather than send him to jail where he will make up with bad characters and come out as a hardened criminal. (Sgd) I'l.M.J. Luguru - R A N. 14/9/79 Sentence: I have taken into consideration that the accused persons are first offenders. I have also take into account the mItigating factors put forward by the accused or on behalf of the accused by the learned Counsel for the 1st accused. I agree with the contention that the 1st accused and certainly.. the 2nd accused as well are almost youths from both appearance and as the medical officers Report shows. The offence is however a serious one and the 2nd count falls under the minimum sentences Act, that being the case this court has no power except to award the same sentence prescribed by the law, the accused persons are therefore sentenced as follows:- 1st Count: 1st Accused is sentenced to suffer 12 months irnpri sonment 2nd count: 1st accused and 2nd accused are sentenced to suffer 3 years imprisonment each. Sentences on 1st count and 2nd count in respect of 1st accused are to run concurrently. Right of appeal explained. . (Sgd) M.M.J. Luguru - R.N. 14/9/79 .16. s. -6- Also the evidence of PW.5 is reproduced below for easy reference: P.W,5ABDãLLkH MOHA.NED, male, adult, Tanzanian, Moslem, affirmed states :- I work with Kedelbha Transporter. I am a driver driving n4v Reg. No., TZ, 19042. In April 1978, on 21st there came a person who came to hire a motor vehicle at about 10.00 am. to go and collect 100 cartons of orangr squash, We agreed at shs.14/= We proceeded to canning Division of the orange sqiash factçry. The said person told inc to wait at the gate of the Nátional 1Ii11ing Orange squash factory. After a while they came with another boy, who told me to take the motor vehicle into factory. The person who hired the motor vehicle is the 2nd accused. Therefore I drove the motor vehicle loaded with 100 cartons of orange squash 4 The 2nd accused was the one who loaded the orange squash. We took the orange squash to Aggrey street to a certain Indian. I haven't seen the person who came to hire the motor vehicle at 5.00, ppm. I tas foDnd that I was wanted at National Milling asthere was a loss of 100 cartons of orange squash. XXD 1st accused: Nil. XX&. 2nd accused: Nil. Section 192(2) C.P.C. complied with. (Sgd) N.M.J. Luguru - R,M, 9/2/79 The appellantts defence in the lower court and in this court is that he agreed with the evidence of PW.55 but that in doing so he was obeying the orders of his superior in employment the 1st accused. - Almasi Uledi. AImasi Uledi has denied this and there is no evidence to establish that infact gave instructions to the appellant to hire the lorry and collect the cartons of orange squash from the National Milling Corporation. Consequently I find that this appeal has no merit and it is dismissed in its entirety. Delivered in open Court this 6th day of June, 1980. (IV1.P.K. KIMICHA) JUDGE Junei 1960 - 6 Also the evidence of P1,15 is reproduced below fq, easy pef P.w. LTIiOHANE1, ma1e uLt,S Tanzanian, Molem airmed 4tates:- • S I work with Kede].bha Transport r I am a driver driving Wv Rég, No TZ.. 1904 In 11 1978, on 21st there oame a • person who came to hire a motor vehicle at about 10.00 a.n. to go and collect 100 cartons of orange squash.' We agreed at shs.140/tii S We proceeded to canning Division of the oraxlge squash faotory The S said person told me to wait at the gate of the National Millin - Orange squash factory, After a while they came with ano'ther boyS • who told me to take the motor vehicle into factory. The person who hired the motor vehicle is the 2nd aecused. Therefore I drove the motor vehicle loaded with 100 cartons of orange sqiash, The S 2nd acOtised was the one who loaded the orange squash, We took the orange squash to Aggrey street toa oertain Indian. I'haveittt • seen the person who, came to hire the motoi vehiole at o0Orn S I was found that I was wanted at National MilUng as there was a S loss of 100 cartons of orange squash. S • S )OCD 1st accused: Ni]., XXD." 2nd accused: Nil 1 . . S Section 192(2) C.P.C. complied with. S 5 (sgd) M.N.J,.Liguru RIMI 9/2/79 The appellant's defence in the ldwér court and in this out is that he agreed with the evidence of PW.5 but that in doing s.c ' • S ;e was obeying the orders of his superior in employment the lst accused. - A].masi Uledi. A]inasj Uledi has denied this and there is no evidence to establish that jn.t'aot gave instructions to th e appellant to hire the lorry and collect the cartons of orange squash from the National Milling Corporation. S Consequently I find that this appeal has no merit and it is dismissed in its entirety. Delivered in open Court this 6th day of Juner 19804 - KINIC - 6th June, 1980 5