19830823 TZHC Mbeya

• (c ;y::yw:: IN THE HIGH COURT OF TMZANIA AT MBEYL e • :LPPELLATE JURISDICTION • CRII[NAL APPEL NO. 7 OF 1981 • .(Original.Crirninal Case No.328 of 1977 of the Distrit Court of Njombe:District at Njombe Before .J../, Kayombo, S.D/Magistrate) F/IECHACK WILLI:1II MBGO. • .. .•• .APPELL/NT versus T HE RE2JBLIC o 0 60 0 0 0 0 6 • 0 0 0 0 0 0 • 0 0 0 6 6 0 0 oo • .. • . RESPON'DENT Charges 1st countg Qoniracy to defraid c/s 306 of tio PënaL.Code Cap.16 2nd counts Stealing by public °s3rvant c/s.270.. & 265 of the Penal 03de 0 JUD GLENT MTJ1YERA J The appellant was charged jointly with tWo others. The aopellant was the first accused. In the first count he and his two ooccused were arrai:ed jointly for conspiracy to defraud 0 In the second count the appellant and the second accused were jointly charged for stealing by public servants. The story was that the appellant airi the socond accused, both being the employees of the Ministry of Education, Njoaibo, issued an LPO to the 3rd accused, a businessman, ordering timber to the value of shs,9,570/=. On strength of the LPO payment was effocte:1. It was later discovcre.d that the purchase was un authorised and in fact no tiribor were delivered into the store of the DEO. It was a fraud. The three men were charged as stated above 0 In his defenco the appellant admitted that ho wrote the LPO in questi5n on instructions of his boss Chatanda (P14) That was all he knew. He had no responsibility to check whether the goods ordered had been delivered. The trial magistrate rejected his /9 GC - 2 - defence an:)nVicted him of the sdcond count (stealing s' ) he timber' tnd. .seatnded him to 5 yearsimprisonment. Hs two co—accuseWere acquitted. He 1as appealed to 1 thJ courtnd MrMwakingwe has argued th e appeal on his behalcf. 3 The appollan± has adnitted that he wrote the LPO 0358002 which vvas the subject of the trial in which timber to the value of shs.9,570/= were orderc, The trial court found that the v&nd.or (3rd accused) 'nct supplied the timber. But there was no evidence who actually took delivery. The DEOs (Pw2 and P.74) diea':that they ordered the.timber.o,n the LPO inquostioand the storekeeper (PY6) lIkewise denied that she. received any timb?r in Septcabor; or Octob r,l*77 as indicated on the LPO0 That boin the case the appellant Imew better where the timbär wont to. He was rightly convicted and the sentence was the one fixed by law. The appeal is dismissed. in its entirety. . / F.A At .Mboya . JUDGE 23/8/83 .4