19841008 TZHC Mbeya

IE [LJ 1IGI Ccjtr(Ji A2 LELLA :TB :if) c•:NA:BJI 6 199$ '. S Or1IINL CfIrIflbXL 0, 243 OF 1 979 OF 91thi DI JGT C(afJ Of OT DITE It'OZI Before; L. S. Ngonyaat, Bei..', M 1 ThIIE. lNAIJiJIa • .... .•,.... ..-• D.-LJAfT -.5, .._o.'.. . ,•, '. 1TDICU - S Tfi REPUBLIC • • •••• . es • •. •. CHLRGF 14 CO1T;TS FORGiY Contar3r tQ cet'on 333 an 337 o e 1 unt Stealing J by ersor enp oyed n the Vujlic ervice Ontrary.±o Oection"27O..the "enal code. - .0 .D..... G HhT BAHATIJ. The ppilant WIThJILE 4 T?TJLJ a• dThvicthd of 14 counts of foriZery contrary to sections 333 and 337 of the 'enal Code and one count of sea1ing by person eisployed in the Public s :rvine C; o. 270 of the 2enal Code, lIe was sentenced to.. tInee yeath rr>ri lc:1nio:)t on each count. The sentences were ordered to ma cc:: rmeaUy. e i now aupoaling aginsi both conviction and ee:tcmco. There was evidence aith'ced to the affect that a total of 14 tickets were foged in that ench of the i4 tichoto showed a reteranour,t of raoney on its originel than on:tC cojj L'jjj5 cuostion of forgery of the 14 jckèts was nö disputed by the nupo1id 4 iae 'disiai.te'twas to tho identity of the person who forged those tickots ero was no handwriting cpert used in thiscaso to cL;xaino the ía' i±t of the forger. But Juna Hanisi P1,4 who depce;d 'that ha h'51 :icrbed with the appellant for t.io years said that he hnew the hanh;ri'fng of the apuliant together with his sioaturo uma ta.stificd I1.1m am that the aonellant was e master at Vwwa ama 'ttLon a..'that ho :acs in eharge of revenue end operat1e3 i c to issue t C O.SEfl ems, iva adcccl also that the appollant - waLs stc'U.on :eastcr fr..: Jh: ic 1970 to October,. 1 979. The charge sheot a: ') j"r en 4th ''c.Lc'a, 1979 . The record in th isr ihobher Juna idcntifcd the handwriting on the :1.1 a for,a '1 o 'c f the )poliaat. The •.....• 2 TCCO.i reads- T.P. May I show witiiess with (sio)soue documents. Witness: The handwritind' and sigtu±e of tickets No.13 ,70597, 70 598 , 70621, 70635, 71775, 71711 9 ,71710, 7151 1 , 7 1 79447 1 79 6 , 71797 9 71303, 71819, 71820 1 71625 Or witnLss thtn Goes on to .lk aoout handing over and takiag over at the station s There .i no indication in the record whether Juua identified the sip-iatures n(! handwriting on those tickets which he was apparently shown. It is only during cxss—examination by the appellant that the witness say.- -•. I cameto know that ticket No.70597 had been wiitten • and issued by yourself (appellant) and such handwriting and such. handwri an as similar to that an fte honci. k. OV( I' duty book and apa±t fon that is that used to see you wrie and siri and we had changed notes by writing on notes to each othert. Ticket 110.70597, according to Detective Sergeant Edson Swebe IM.l who investigated this case, had SJes.82/60 on its original whereas the copies showed 2 h.41/4O Tb ifferoce of Sns.41I40 was said to have been stolen by the forger. Balthazar Nbuya h.T.2 an accountant with Tazara D'Salaan chcked the accounts also noticed the 'ifferonce between the orjna1 and dunlicate of ticket 140.70597. ho orinal showed 82180 whereas the conies ohowed 41/40. The sum of 41,40 had been stolen, he also noticed cimi lar cUffe- rences hetwoe the on ginals and duplicates of the otherticheth w ich he checked. According to the evidence of 'fleuya and Sgt. Jjebo all the tickets shown on the charge oneot had been forged and the daiferonce stolen an the same way aswao for: ticket H 0 70597. The defence of the aopollant wac irn ly that he had that there should have been a har:dwri±ing emeert employed to identify the author of those tickets in question and nt.to rely sinulyon the evidence of 1I.4. I will start . the analysis of this anneal by saying that tO prove the handwriting and Si: e.tu cof a suspect two ways may be employed. One is by calling a nerson who has worked with tonisoect for some time and who cnows the hadwiitin. and signature of such. ousoect'. Th other way is by takan eca an !"Llros ard wra -Langs of he sucpected o ether with the disputed sieoaturcs . md wrdtings to the hand.iriting export. It follows therefore that th.00 in no necessity of taking the cUrited writings to a handwritIng neori n k -do case tio erson who claimed tc know the handwriting a:c si:ir-ture of the eanellant 'was Pk.4 Ifamisi. But it is clear . . . . . 0 011 3 4 3 T also from the been eioyed as a statioii. i,'orana nt'4iawa zara Station. He then terc9erec' the letters of oi tnuit as st tion foremLn. He deiued YI havjg been e station naster at 1T11117a azara .tátidn. e alsd added that he diö not row who w"s woiki .s tation 11aster at Vwwa izara Statioh. Thp 1orned trial 'Iegisrate aitci riarioing theevicience said that there was evidence th :?-'~- ticket No. 70597 and the others namely .7059 8 , 70633, 71511, 71710, 71711, 71775, 71794, 71796, 71797, 71803, 71819, 71820 and 71825 h'c en iuec' at Vwas.a and that the he ic1writiug was of the a1lant. 110 foenct no evadeco with regard to ticket 10 70j1. Then he went OtT to coi i"t epellant on 14 courr' -s of forgery an 1 one coimt oI stealing by publio-s rvcnt. In his eiiorancun of arocl the anollnt argued procee&ins in this case that Pt .4 is uot recr t d anyuheie to have idonb.ficd the ticets to have been Lsued by the - ppellant. The only ticket PJ.4 s1ated specifically that he had i-uen ifie' to be OuL 4 wr bten by the appellant is ticket No.70597. It follows therefore that the counts in respect of the other tickets have not been proved and ti'e convictions cannot be allowed to stand. o With regard o cunt one whih ic in respect of ticket lo.705.7, the learned trial 1"a:is±rat@ ltevdJ the evidence of 1•4 concerninghis. ability, to ident:fy th of the appellant. I see no reason why I shou]d fci.lt h Li in or this. !ltnouh it y have bcn desr leto tak the di u Led t cl'o bc to hancL\rit1ng opert, the fact Li t they were not taken does riot vitiate the evidence we have regardin th e autior of ticket 070597. IT.4 testified how the appellant was handed over the duties of station uaste' at Vwaua Tazara Station. '!i s evidence was not sufficiently challenged by cT:efence. IkT.4 explainedin his testimony how the appellant eventualli b aroe a station master namely after one Hulary was demo Led frem tation Master to Etation foreman. 'tie fact that the a;pollant' s lettrr of bhows biLl as a mere Station Foreroan does not uean that 110 dii not assume the duties of station roaster, Indeed the a:oueil'F,rit was ivasive in his answers to uostions put in cross- examination. i. cJ...dri dnot to know who was the station roaster at the material tine, altiouJ he aciniLed to ho working there at Vwawa as station forenan. I hav no doubt the ape1lant was deliberately lying becauso it would have been irrosib1:. for him riot to know the station master. For the al.ove roasour I find that count one was proved beyond any reasona1e doubt. The o thor counts of forgery naly counts 2 to 15 /4 - inclusive were not jproied at all and the eppel1ants conviction on these counts is quashed and sentence se.:tasiclo. --ic-,onvi.ctiOn on lst-bouht is upho]jJ. rEo serionce of cnnee irca irj.sonnont althoub severe is not an my view nan.festly excossi\e o ( ii i s also uphld and sauce it roquares confarna+ion it as hei'eb coniarneci. 8 oicerrjng the acunt of steelinf by public servant wuich as count 16, I must y here that i was bad for iuplicty., Each mount stolen as a result of one forgery should lmve fornd the suoject natter of one count of stealing by public servant. 11owever 9 in view of the evidenQe'whih was adduced, the appellant was not piojudiced in any way in his defence. The error in count 16 is th'ref ore curable under 3.346 of the Criminal roedure C o c e b view of what I have said above I will 'set aside the conviction of stea1': by public servant the 'sun of Shs.1',455/50 ad substitute theref or a conviction for stealing by iublic servant the sun of Shs.41/20. Tho onctence of 3 aars imprisonment is JJflnOSod on this conviction, '• At 1beya, . BAI'IATI, Oth'October 1934 ' JUDGE . Court ocpnent deljvcre 1 '1 C )Ti on C rh October, 1984 in the 'absence of a 11an 'br' in thd rosence of 1 '1r. Teepii,a for ' the liepub1ic. A. BAIIATI, pp,G J. 10.1984 : CIfRTIB:[JC CCPY OF dIF OFLIC•Ii'ILL, ,flJNI CITRR