amini so seleka vs republic 1985 tzhc 46 11 september 1985

IN TriiS H IGH CGUjtiT CJf1 TAH'ZArilA A T TaBGRa AiVjdLLA'fi! J U R I S D I C T I O N (Tabora R e g i s t r y ) idGh C CURT CRIMI.<AL APPi^iL wC. 34 C F 1^85 (Original Jr&'/iinal Case No* 1# of 1933 of tne District Court of Fabcra District at Tabcra - Before L. £• Mchome, .dJsq*, Principal K. Magistrate) S£ltKh AfclNI y|3L f K A ............................. ............................ APP JUiL-AUT VERSUS TH3 RiiSPUBLilC........................................................................... ............................... Rj&S?0i33KT J U D G K i5 N T MhaLU3A NYX i J «Jt The appellant Am ini s/o iieleka was charged with five Grunts at Tabora District °curt. He %/as acquitted on ths first count of fravA-Ient false accounting while on the other four counts of stealing by a person employed in the public service c/ss 270 and 2 65 cf the Penal Code he was duly convictcd* Gn the 5th count he was sentenced tc seven years imprisotfiient v;hile on tne 4 th count he was sentenced to five years imprisonrn ent and on Doth the 2nd and 3rd counts he was sentenced to three years imprisonrnent on each. All tne sentences were ordered tc run c o n currently» he is now appealing against conviction and sentence* The arena of controversy at the trial v/as rather narrow. It was common ground at the trial that at the material time appellant worked in the Judiciary as Chief Court Clerk cum cushier at Tabora R . M . fs Court* .itfnong his duties were collection of revenue and m a k i n g payments. He was also the custodian of valuable exnibits tendered in court and these included cash, firearms, gemstcnes and govermiont trophies. The bench clerks who wont tc court with magistrates xiandod over by despatch those valuable exhibits to tne appellant as soon as they came out of court* The appellant got involved in this case as a result cf loss of some exhibit money. Concerning t he 2nd, 3rd and 4 th counts, it was the prosecution case at the trial that appellant failed tc account for cash exhibits to the tune cf oils* 23 *092/^0 which he received on three different occasions between ^0 / 5/ 1^82 and 30/12/1^82 in the usual course of business. A c c o r d i n g to the head of the original section one Abdallah s/o Hanenc (Prt.2 ) when the bench clerks cams out of court with valuable exhibits -they had to enter them in the ordinary exhioit register (Exhibit P2) which was Kept by hijn (PW.2) and then tne bench clerks proceeded to the appellant who was asjcscl to sign in the said register to acknowledge receipt. A f t e r being handed oyer it is said appellant was supposed to enter them in the valuable exhibit register (^Ixhibit Pj) which he kept a nd then stored them in the strong room. The ........... / 2 . court the s i g n a t u r e o f a p p e l l a n t i n the W .2 i d e n t i f i e d i n / r e g i B t e r ( i n h i b i t P 2 ) where ix i s a l l aged cn threa d i f f e r e n t occasions a p p e l l a n t signed f o r Shs„ 3 | j / 50then ijhs. 999 / 4 ^ and f i n a l l y f o r the entry c f ^hs. 2 1 , 7 2 * / = . The R.K. i n charge one 3 r.il IT. Masawe (?W* 3 ) a l s o purported to i d e n t i f y the si ^na cur e of the a p p e l l a n t i n the r e g i s t e r i lxhi bit P 2 * Both those witnesses have soon the a p p e l l a n t s i g n and have f o r y e a r s r e c ei ve d dccarrients signed by the a p p e l l a n t in the u sa a l course o f b usi ness* I t was on l / l /83 when the a u d i c c r Paulo s/o Edward ( PW. 1 J i nspect ed the a p p e l l a n t arid the a p p e l l a n t coi.ld not account ti ie. ^hs^ 2 ^ . 092 / 9 ° . . J h e ^ i n c r j c y * , , . , , . , ^ . v -- «• • iiowever a p p ev-.< l l a .-t n t *.i n*.s ivs t e d ,at, • the ^ :t r4i,a l that htj only used the v a l u a u l e e x h i b i t R e g i s t e r ( E x h i b i t P 3 ) and not the other r e g i s t e r i lxhi bit P£*whicu *ias kept by PW. 2 . he t e s t i f i e d that any v a l u a b l e e x h i b i t s brought t<> hi/n by the bencix o l e r k s were acknowledged by hir usi ng oniy the v a l u a b l e e xh i Di t r e g i s t e r ( i U h i b i t P 3 ) where he could s i^ n bat net tne other Register Jxhioit P2. he d i s c l a i m e d the s i g n a t u r e s in E x h i b i t P 2tc be h i s . ile evenc a l l e d two defence wi t nes s es who had c t one tiwe been bench clerks a t the samecourt. These were Daudi s/o k i d i k u ( D W . l ) and Serah s/o V (D'fl2.) who appeared to. support tne.. a p pe l la nt that v a l u a b l e e x h i b i t s were.1!handed over tc . a p p e l l a n t - u s i n g the v a l u a c l e exhj &i t r e g i s t e r . (iixh*lP3 ) and not, the other r e g i s t e r # . , ", f , i\ ». The!/ t r i a l m a g i s t r a t e b e l i e v e d the p r o s e cu t io n witnesses and feund- t h a t . t h e y had duly i d e n t i f i e d . t h e s i g n a t u r e o f the a p p e l l a n t in the re gis te r* ^ h « . P 2 * -■ Then the t r i a l m a g i s t r a t e proceeded: ,y . nt. Accused lalleges that i f he had r e c ei ve d and signed f o r the money he would have entered it i n - h i s , r e g i s t e r j£xh.P3 * But eyzn in the he admits to have r e c e i v e d , , - . • V' f Jf <• a c c u s e d - d i d net ent er tnat money in the r e g i s t e r . -e ither# » I am t h e r e f o r e s a t i s f i e d that accused ' r e c e i v e d the.money a s ’ a l l e g e d * 1 ^ In..the memorandum c f appeal..,the' a p p e l l a n t .complains tnat the t r i a l ' • a g i s t r a t a v/as wren,:, to accept the testimorw of Pw.2 and Pw.3 as r egard s the i d e n t i f i c a t i o n o f . h i s . s i g n a t u r e because they a r e not handwriti ng e x p e r t s * 'it 1 ;i• But who, t c l d , a p p e l l a n t that handwriti ng expert s ar e a panaoea, to every time wiien-the handwriti ng o f e person r e q u i r e s to bo >: ...if identified? Obviously ^ the argur.ient c f ,a p p e l l a n t i s misccnceived# Under the Evidence Act No. 6 o f 196 T f h e o pi nion of any person aoqiiaint^d 4f i t h the <hand;;ritin 0 o f the personvly. •whom i t i s supposed to be *rrittenr... Gr-signed is . a dm i s si b l e ' in . . . 9 Vidence« , !A n d i t cannot be gainsaid thct FVn.2*.-, • a.jsd.PW 2 irj the u sual ;oourse.tof .‘ business uave seen appellant sign and have handled' various dccu®ents.jpurportinu to be written and signed by £ & » f ^ p ^ l a n In the ci rcu mst ance s?t h e r e f o r e the evidence of Pto#2 and PW..3 on this a s p e c t Of wa^ i q i j i i t r e l e v a n t a ad j p e f u J # £/j^:* 4V f' iHt!'■ i V iy. fit* IX • *• • However I Lave anxiously considered tho evidence on record and came to trie comfortable c o n clusion that despits the good intentions of P W . 2 and P//.3 y e t their evidence on the factum as to whether the benoh clerks hande:'. over the money tf the appellant was hearsay evidence* This is because the relevant bench clerks were, net called as witnesses. As it is i?;U2 and Ft/. 3 only established the existence of a book entry in jixhibit P 2 but their evidence could not be relied upon to prove that the b ench clerks handed over the cash to appellant* Such evidence was wanting. Book entries cannct be a substitute for tne r equired evidence. The fact that appellant admits to have had received d h s * 50 ,000 /= though it was not entered in the valuable exhibit register, this only goes to show that matters of book entries alone are veiy u n r e l i a b l e by themselves unless supported by sonit, oral evidence on the matter, bo whether there has been some book entries cr not, by itself it w ould not suffice to establish that appellant received the money. The bench clerks should have been called to testify on t^e matter. In my considered opinion the omission was fatal. as tiio p o s i t i o n obtained, I could see no reason as to why the two defence witnesses L.tf. 1 and DiiU2 should not nave been beiieved or at least their evidence &i;ci..j.d have raised some doubt on the matter. They appear to be independent witnesses and their testimony cn the m a t t e r that only the valuable exhibit register was used appea r e d m o r e plaus i b l e than the account of Piil.2. I could not fathom out as to why tuo b e nch clerks should use the ordinary exhibits r egister when appellant had the valuable exhibits register. The acccunt of the two defence witnesses is consistent with s omersault reason while tne story cf Ptf.2 appears a £■ ■ on logic. I would accordingly £ive a p pellant the benefit of doubt and acquit him on the 2nd; 3rd and 4 th counts. ,Ve now turn to the 5"th a n d last count* This count involve* stealing S h s . 40, 046 / 20 . The a p pellant had received it as part of the cash exhibit in Criminal Case He. 231/62. The total amount received was iShs. 50?000/= but Shs.9,12.V&0 only was found in the cash box when appellant was inspected by the a u d i t o r Paulo s/o Edwa r d (PW.l) wnosa report was a c c e p t e d at the trial as jkhibit- PI. In his defence appellant stated that he u s e d the m i s s i n g m o n q y i.e.^.0,046/20 to pay witnesses* He claimed that payment vouchers for the witnesses were tnere in the strong room or else the# must have been lcLt cr stolen over tne night of 3 l/l 2/82 - l/l /8 3 when the i nvestigating officer Insp. William s/o Mtaf y a (PW. 4 ) seized the K & y 3 cf the strong room frcm the appellant. The trial m a g i s t r a t e d i smissed the story as preposterous th?.t the p o l i cema n had tampered with the strong room ovor the night, I associate m y s e l f with the finding of the trial court on the matter. As stated in that judgment, the strong room is in the court b u i l d i n g dhich has guards day and night, J-oreover the a l l e g e d police officer does net h a v 9 keys to the door of the cash office wl^ere the strong room is situated. Jnloss the the appellant suggests that all a n d sundry had conspired to victimise him, otherwise there is no basis for the a l l e g a t i o n that the p o l i c e m a n stole and destroy or. the relevant payment vouchers for the witnesses, There is another a d d e d i’ actcr wnich m a k e s tne a p p e l l a n t s stozy rather hollow. How on earth con].c_ he pay the exhibit money to thcTwitnesses as if it was a standing imprest? That is a fantastic phenomenon# While I entirely sgree with appel l a n t in his memo of appeal that m e r e a c c ounting irregularity cannot oe tantamount to stealing y e t in here it was m o r e than a n aoccuntin^ irrebu l a r i t y • i.s at the m a t e r i a l time there was nc shor t a 0 e of funds for witnesses and there were no payment vouchers for the alleged witnesses, the only reasonable inference in the circumstances is that appellant stole money rather than a n a c c o u n t i n g flaw. In my judgment the finding cf the trial court on this count cannot be impugned# ii.s regards sentence I entirely agree with appellant that seven yeai imprisonment on the 5 th count was rather severe but by no m e a n s exoesLive, Persons of the k i n d who abuse the trust bestowed u p o n them by the public, siiould not be heard to say tnat society is unwind to them, Th^y are reaping the fruics of their sins. In the event I a l low the appeal on the 2nd, 3rd and 4 t h counts. The convictiens on tnose three counts are quashed and sentences are set aside. Likewise the compensation order in respect of them is set aside. As for the 5 ^h count the appeal is dism i s s e d a n d sentence confirmed# M W a NJ&i Jm L, H UALLliJAi’ JYA 11/9/85 JUDGh Cowrit Jud^i o n t d e livered in Chambers this 1 1th day of S e p t e m b a r , 1985 in the p r e s e n c e of M iss Fiagcke - iit^to iittorney. 11/9/85 JUBGiS