19800516 TZHC Dar es Salaam

- •1". IN THE HIGH COURT OP TANZANIA AT DAR ES SALkA.M APPILLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 100 OP 1979 ORIGINAL CRIMINAL CASE NO. 128 OP 1977 OP THE DISTRICT COURT OP IIJLA DISTRICT AT KIVTJKONI BEFORE A. C • 1MMA O Esq. RESIDENT M?GISTRATE C HA.GUENI SAIDI . . . . . . . . . . • • . . . . . • . . • . • . . . . • . . . • • . . . . . . . . . Appellant versus THE REPUBLIC ...... ..... Respondent CHARGE: Theft by person having an interest in the thing stolen c/s 263 of the Penal Code J1)DGEENT The appellant in this case s Ndugu Chagueni Saidi was coniri- cted of "theft by person having an interest in the thing stolen" c/s 263 of the Penal Code and sentenced to 2 years imprisonment. He has now appealed against conviction and sentence. The Lower Court judement is reproduced below for easy reference. JUDGEMENT "The adcused (ihagueni Saidi stands charged with the offence c/s 263 of the Penal Code Vol. 1 Cap.16of the Laws. It is clear from the evidence that the accused was the village treasurer of the Mwongozo Ujamaa Village within the District of Teraeke Dar es Salaam Region. It is withit the con±'ormity of evidence that accused was handed shs.4,347/70 for sate custody on behalf of the membere of the Village. This fact is not refuted by the accused and infact he admitted in his evidence that he was keepg the same money in his suit - case box but was stolen by some unknown person(s). It is also established in evidence that efforts to bank the, 'money failed because the Village had not as yet Qbtcjned a Registration Certificate so as to make it a Cop,ôrate sole- to have, legal atiy to sue and be sued... ]t is also in agreement that tie treasurer, the Villa S.cretary and the Chaimnan (PLt,) took the money for safe custody to the District Office of Temeke but the exercise became in vain because the .District Treurer was not present. There is na doubt, as the evi49nce on record speaks of itself, t the money which was teturned to the Village on the same day (7/2/77) was hjide.d back to the accused Chagueni Sat Who undoubtedly found it correct and kept in on behalf (,r he Villagers. 2 The, court also heo'a the evidence of the Village I'i4jrnan(PW.2) who testified to the effect that hin self and the accused were officially scheduled for a meeting (seminar) at Temeke District Office, on 27/2/77 According to him, he infoed the accused on 20/2/77 to bring with him on 22/2/77 the Village mdney to request the District Treasurer to keep the money for them That on 22/2/77 PW2 reminded the accused to take the money with him - which accused, according to PV12 7 claimed to car±'y with him in a brief bag (case) he was carrying. That the accused included in the cash mony of 8hs.4,347/70 a cheque of shs.1,843/70. being the proceeds of cashew nuts sold by the Villagers. It is also PV1.2 1 s evidence that the Village Vlard Secretary was with them (PVT.2) the accused), and during the similar at break time the Ward Secretary took them (PW.2 and the accused) to the district party Secretary if he could help to solve their problem and in fact they found he could not. The seminar ended at 6 p.m. and the V//secretary warned the accused and PVJ.2 to bring the money with them on 22/2/77 to find out if the District Treasurer would be home and on 22/2/77 both parties started for Temeke District Office; and.according to PVI.2, the accused claimed to carry the money but did not show it to PW.2. That before they attended the seminar the Ward Secretary told PVJ.2 and the accused to see the District Treasurer about the money but that Chagueni Saidi claimed at once that he forgot the money at home as he was not sure he would return for the seminar on the 2nd day, Chagueni Saidi (Accused) slept in the town on that day (22/2/77) - a fact which is acccpted by the acused himself but he claimed to have missed transport to to kkè him: back to the Village. But his coalegue (PV1.2) retred to the Village on the sane evening. PV/. 2 came. to learn about the money to have been tstolént on 23/2/77 when he 'vas called from the Shanba by a'militia man and asked to urgently summon the Villages Committee normally comprises of 2 people, That it was in this emergency meeting Chagueni (accused) announced that all the shs.4,347/70 was stolen. The matter was referred to Kigaraboni Police Station. It is also the testimony of PVT.2 that when accused was, accompanied by the Police to his home he told the Police in the presence of PVI.2 that the money was kept in his coa,t pocket. That PVJ.2 did not see the coat. Yet, the accused in his sown testimony was heard telling the court that he kept the money in a suit box. I would in the circumstance chpose to accept PW.2's version rather than that of the accused Qf the accused because PW.2 has no reason to give a contradictory story to that of the accused himself. I are tot informed of any ulterior nature on the part of PV1.2 such that he could give a false evidence against the accused. That is not all. The whole story of the accused must be wholly rejected. There is nothing on recorC. to establish that there was any braking into the accused's house, an episode which could make one to accept the accuE'd's words that the money was stolen from his house. It is also not shown by the accused .that he ever shared his romi with some one else. The evidence before rae is that of the accused's mother, Fatuma Sultani (PW.3). She rery clearly told the court that although accused lives with his ather in the sane house, each one of them has his own room. That a n the date in question, i.e. 22/3/78 when accused went to tci he did not lock the room. She further told the court 'ft it one &iili M'bwana cane and requested her the key of ti E house of .../3 : 3 : the accused PW.3 denied having been given the key by the accused and she confirmed to the court that she entered the house, Chagueni's room (accused's) was unlocked. She went on telling the court Emil Mbwana entered the room and collected a radio and then left. P1 1 .3 adults that Emili Mbwana and the accused are familiar to each other. Nbw, one wonders why the accused should leave the room unlocked when he icew that he kept the Ujanam Village member's money in the house? Again the evidence of P\7.3 is not a concrete evidence like the evidence of an indepehdent witness for a well 1own fact that PVI.3 is the mother of the accused. Even if it were accepted that the accused left the house unlocked he bothered not to take the Police to have the alleged Emil Mbwana arrested and treated as a suspect for stealing the money. The accused in his defence did not even make an attenpt to have the said Emil Lthwana sunmoned to verfy that at least someone did enter the acáused's room when away. To put the matter short I an; satisfied from the various incidents which took place before accused announced of the theft that it was the accused and not anybody else who stole the money. His deliberate omission to take the money with him to the district treasurer of Teneke as originally planned - despite that he was reminded of the sane thing the day before his departure to the tovth by the Ward Secretary - the accused's decisior to remain in the town when his co'leagues the Ward Secretary and the Chairman of the Village went back hone on the sane evening after their meeting to which the accus was a member and,r.:above all the alleged action by the accused to leave the house unlocked - are all various incidents which any prudent man would draw on inforrence that the said money was stolen by the accused himself. It is also noted from the accused's own evidence that when he cane back home on 23/3/77 he found his suit case pad-lock removed. None of the witnesses who gave evidence here in court ever mentioned about the accused's suit box having been broken. Nor did not transpire during the cross-examination by the accused on the prosecution wit- nesses that anything in connection with the pad lock of the accused's suit box was mentioned or asked. On all the above facts as well as a close exa.ui- nation of the circumstance at which the money is claimed to have stolen suggest nothing but a guilt mind on the part of the accused. Having been fortified by such facts and having drawn an iifferrence of guilt on the accused's person, I an of the strongest view that the accused is guilty of the offence as charged and I convi'ct hija accordingly It may be noted on the charge sheet as well that cheque No. 245890 valued at cents 50 is alleged to have been stolen by the accused. But it is surprising that through- out the prosecution case there is not a single witness who gave evidence to that effect. The evidence which seems to refer to a cheque is that of Insp. Kossey (PVJ.4). He told the Court that apart from the Cash money stolen there was an alleged cheque for shs.1,845/70. The witness, however, admits that after he sent a "stop order" to the N.B.C. foreign Branch the said cheque was never and has never been cashed and that he never heard any adverse report from the beneficiaries. As the said cheque for shs.1,845/0 was never mentioned on -Jr : 4 : the charge sheet I am not legally bound to deal with with it because it is not the subject matter of the dispute.. Also the alleged cheque for ct50 mentioned above I treat it as an irrelevant issue because the evidence before me is silent on it and as such I cannot deal with something which is merely an assertion with no proof of it. It should therefore be struck off. It is so ordered. Sgd. A.C. MREMA. RfM. 15/3/79 - Accused is a first offender. However, I would like to j.tbmit that the money belongs to the members of the Ujaraaa Village who toiled to get the money and to see to it that the village made a rapid s'ti'ide towards prosperity. Accused was trusted by the villagers and as such he had to exercise his utmost faith toward the members. It can also be recalled that it has always been through such conth.wt of the persons trusted by the members of the Villages or co- operative shop, or which ever the casç may be that such movements have always ended in abysmally failures. In order to protect, the connunial eterprises harsh sentences should be imposed on such criminals who steal money or goods of the members pf such Co-operative movements. I therefore pray that the court to set up an exenpianary puxiishnient in this case. Mitigation (Accused):- I do not have any problem. Sentence - The Village unfortuna - ely was not a registered one. It wouldnot therefore be construed as a specified authority under 5,3(h) of the Minimum Sentenbe Act, 1972. In the circumstances the case does not fall under the Minimum Se Sentence Act, However, I would concede to the P.P's submission that it is a proper case whereby a heavy and deterrent sentence is called for. ORDER: 1) Accused is sentenced to 2 years jail. 2) Ebdaibits A (the goods seized from the accused) Exh. B i,e. - shs.146/50 and Exh. F i.e. shs.50/ to be part of the money stolen by the accused and these should go directly to the hands of the Village members. 3)t After accused has served the sentence he should reimburse to the villagers the remaining portion of the money belonging to the said Villagers. Sgd. A.C. PIR]ffA - R.M. 15/3/79 Right of Appeal explained to the accused. Judgement delivered in open Court this 15th March, 1979 in the presence of the Public Prosecutor and the accused. Sgd. A.C. IEMf BBS IDENT MAGISTR1TE 15/3/1979. •p.113T3S -Lp qt uoqm Sup otq. 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UO q.TTrD Pu -tcidut UT MUT UT p0110 0U.14ST0] 1.UGPTSH POUJUOT Gt ¶ UUOU 0q 001IO2TTi0U UToJd. 1oUT q MUT ;istrctt poqae.1TpSTu GUJ4STitI qJX0pTS0 POUJUGI ot !i 1,c o d dL, T° Spt1flO1 uTicri SUUrE0CTLIU otj TUGCICtU eqq JO 2UT.1UEJLI 0 , U1flP oTTqnd0 otq IOJ pOIUOdCTU WtnH "W P1tO UUII0ddU .10; poxcoddv TTUUSI P0t 1 tO141 !'II'I "- J- 4 : 6 : I an of the view that the lower court judgetients expla- nation of the efforts that the appellant made in order to have the money kept in safe custody highlights the appellant's sense of respons1bility ? I therefore don't think that it would be fiar to allow the single incidence of negligence (that of forge.ttingtO take the money with him on the last day) to weaken has earlier displayed. Also his story of the oLrcunstánces which led to the loSs of the r.ioney could be truer. And if so believed then the appellant is entitled to the benefit of this doubt and be declared innocenL Finally I find that the akarge against the appellant was not proved beyond a reasonable doubt. The appeal is for the above reasons allowed. The conviction is quashed and the sentence and orders macic' thereunder are set aside. • 1 //(. v----" M. 1 .LIMI0HA JUDGE 16/5/SQ S Delivered in open court this 16th Day of May, 1980. / M. P. flif1CHA 16/5/80