19840926 TZHC Mbeya

I i ?•. i::..f 4 : •• . - IiTIr HiGH COTJR TANZidI4 - . ir ' • : . . •'.. .- . , .. .. .ifr I i •- - 1• r T Iv3DYL __:. . . ;- . • —r' -- :;--;T. . . ,• . • !iLI' nIc'iGN' . : . i...' • ;(" r , , I GIEXI) (TIBJI . G]iI±t PL . Nd . . 140 OF 1983 ! . " '- . . .L .L. — )' • ' OT(:L .L CkJ(L Cf O. 139 or 1981 OP I2- i L LR1 CT COURT OF UI i]1 '. ... .. £... • • •.:(fr -. 4t0 XT SULI3iLiL ---:-:;- -;:------ ._• --- y; : I .. ' ;.. _ . J _ ..' rj If. ._ ifl.L,Ji & 6 c ' S.&tI R . - d APpLLJTTS ° C • .•tij 4 ,•. - f 'I4 1 r PUP iJJO13IC • 6P01TDEN1 P C}1iUGiJ: (U1 -i - 5, 14 ?i 17: Sta14pgby sons'eloyed. the Public .Ire c/s. 265 nd 7F o thD renal r0{• • •; Ci Sta1i1n'c/. 25 Of the I 0 0. r.uduiemt fa1 accOüitn 'cs, 317(b) of the Penal Code. V V d-' 7, 1Q1 p 1( OT]T ti/S. 333 th 3 IT r ' the Peflal. Code. •--- -. .. --- --a r Thc six apella r' c ri th1$ 1 1;) eal WU1 L charged w ith vaziou soffQnces nar1ly steal g y publb crvt c 'e. 210 f te penal Cdd1c, imp1e theft c's. 265 of tie -nl Code, frtudiileit falso ~ ccoun ga/s. 3t(b) of ti erl Code fror con rryo section 53 and 337 of he Penal ock. They were acqutuof ti coui±s of t'Lftby ublisdrvflts, fraudulent false acco ia a&iorurj an convicted df a single coui 1 of theft u s. 265 of w e 5nal Ccde ant. oitnced to scrvd 5 years in prison e-ch. They i cie uiticr orerod to pay compensa'tion to the National iIi1lin Cor o joc th - uie o the money they were convitod of:staling.. ••., Tne 1st and 2 -ui o1Thitp wer i . ocribed as vi1laa seetarr nd rCshie re)cctiv3ly i u. ±her erc ci rged wth theft by public srvc.nbs .ncourts 1, 5, "s, ii j , an d 17s Ti e rest of he appe1lant were chared ntb 5 i1cotrary to section 265. The ' counts were 2nd and 18t cc n. Ir. Datejuna' for te appellais submitted that the couitc> f1reft cv DuJlJc servants weio improperly laid on 1st and 2nd a:o1iTi becau tyrà not employed ifi th .. . . -v public service, i aeo we if anything employed by •the village. Mr. Batengdsubrittod furter that it was not clear 1 w.héhr. all the appellants' we coicte4 6 f counts 2 and: 18 relating to simple theft becauso thetrial Nagistrato dedidodto convict all the appellants of a siniooffencof thftu/s. 265...: All that I can say here for the moiiient i that the lonôd trial aiatate in hiiiderit was unable to dealwith the oVidcnce.:b.efreL..him and hethose an easy wy out of combining everythi i n.no count. As such itis not at all clear how the .ppellants stole the uoney, bccau,e.. acooring to the charo, the steeling was su osoc t be iiorpqtrated first by forgery and then fraudulept ialse acoun±ing and then only could the cioney be stolen. But nothing was dcided in respect Of the forg ounts and th di A dti lent false accoun. o012n 4 s1 Since it was not rnple 1t whic.ha 4tppellanto.weo aIle'e to have done such as going into the of andotealing thenibncy .theind then, there was need to analyse the ovid nec s to how each sun of noney was stolen. ndod thc evidenoe. hoiis that there was a crop buying season and that the reoiey woulbe giyento the apellan: by héNtional Hilling Corporation forthn to jurdhaee croo on behalf of the Corporation, The crops were to be transported to the Corpotion. - e audit revealed loss crops sent to the Coraration han-what the nancy given could buy. How then could. a .convjctio of sirj:le theft in ore count be eigaixtst all the appellants without showing the role playd..1y each pllan, in t.hc tIeft? . .: •., . . I olso agree witn i Jatcyini'o submisson [that the learned trial Magistra-te. convicted the ppellnnts of t.eaijngcrops or p9neyno.t 1mowingw they had atolen 6 This is another jndication of the, ronf in.,.wh-L 04 -.t.11Q larno. trial hagistrate was. There was no cvidence to show that al the,appolnts li joiiAtly and together stolen all the crops foim& shot or the .ioney .1ue of the. ops :and . y0 the laed • trial Magistrate held then to have conspired to steal and to }iavestolen. together all:±hat which is aileged to have been stolen, : .. Iiiwlly 'I agree. with learpod Coi el for the .app]lant. that, the -coth- th,of franiulent:.laccounting 'and forgry having been dismissed, there wac no evidence iheruLy the singlecoun-tof stealing c/e. 265 could have stood.... . .. ..... :.• :.:. e'•::-;o The Pe?ubllc did riot suppot the conviction. hr. Kapinga, learned State Attorney describcd the juded of th loarned h1agisbr4to as : ...... 13 uncomprehensible. With respect I I ca:anot SOC how it can be said that this case was properly tried. .1 would have wished. to order a new trial but in, view of the period the appellants have been in prion and in view of the poor state of investigation in this case and it being un likely that there would be any improvement on the investigation, I have decided a(ineb ordering a new Ixial. For the above reasons, these appeals are allowed. The conviction is quashed and sentence and compensation order set aside. The appellants are to be released custody forthwith les6t1ierwise lawfully held, /1 At Mbeya, 26th epteribor, 1984 JUDGE Courts Judent delivered in Court. Mr. Jiatey-unga for the Appellants. y1ri hapingasfor the respondent. ------ -,-.- - A. JUDGE. 26. 9, 1984 N