19701118 TZHC Mwanza3

1 H .41 lIT THE IIEGH OOURT OP TAITZaIA AT iTZA Appellate Jurisdiction O1IIMITTAL APPEAIJ IT0 497 OP 1970 (Original CriainoJ CoccI-To, 177 of 1970 of the district court of Shinya.. before E. ?. Kotiti hsq., Resident T.iagistrote). CKP21LES ITIA1'TI . . . . . . . , . . . .APPELLAiTT (o:Ic.IiTI.i ACCUSED) • versus THE REPUBLIC I . '?-- - •--- CHARGE:— Two counts of stealing by a person euployod in - ublic s--srtco c/sc 270 and 265 of the Ponal Code -. ..-. .9 JUDGMEPT - : 1US1TGA, Ag.J. - The appellant Charles i'Tkani was coiivicted of steeling by a person employed in the public serce and scnenced to two yoos imprisonment with 24 strokes of corporal punishnent He now appeals The brief facts were that the appellant was employed as a clerk by the Shinyanga District Council and was attached to the 1-iwantini Prinor: Court wherehis duties were, among other things, to collect revenue for the Council At first the appellant used to keep his, collections in a oaf. at the prinary court but afterwards on 26.1.70 he handed over the safe to -the primary court Olerk (P.r. 4) and instead he used a cash box to ke.p his collections in On the day he banded over the safe to P,W. 4 he took out all his collections from the safe end after doing so he gave to 4 the only key to the safe, but he locked one drawer of the safe end reteir.u7: the key to it As from the day he handed over the safe and key o PAT. 4 he never used the safe cgoin and he has never asked P.W. 4 to open the safe for him for any purpose On 13.3.70 Juies Jisau (P.7.2) a Ward Executive Officer chec1ec1 the appellant's cash and accounts and discovarod a. shortage of E.27O/50. On being asked by this witness the appellant- said that he did not 1uow where the money was P.W. 2 reported the .horte:;c: toP±'ancis Izengo (P.V1.3), an accounts clerk employed by the Counc±l-oOn 193,7 0 P.W.3 went to ôheck the appel1nts cash and accounts adfoind the sale shortage of S270/50 being the enount collected from 6.2.70 to 23.2.70 on receipt Nos. 33351 to 33354. The money was not in the cash box and on bein,' asked the appellant told the witness that it was not in the safe cither The witness gave the appellant tine to make good the shortage but on ai1ing to do so he took bin to the police on 21.3.70 who arrested him On his arret the appellant had 2 keys to his cash box and one key to the safe drawer. He handed these to P.1.2 the 1ed Executive 0fficor' In his sworn statement the appellant said in effect that the money found to be missing was kept byhin in the drawer to the of e which he handed over to P.\.4 on 26.1.70. On his arrest the police handed over tho key to this drawer to P.W.2 0 the Ward Executive Officer, despite the appellant's protest The learned trial magistrate, after a careful review of the eviCen - e, rejected The appellant's defence that this, sun was in thO drawer of the safe, and it would appear that he Was justifiedi to do soc- The±'ewas evi10.:.. that vien the appellant's cash and accounts were checked on 18.3.7 0 1 P;.;. 4 who held the key to the safe was present. The trial magistrate accepted this evidence. So that if the missing money was in the safe one wod expect the appdfltht to ask P.W. 4 to open the safe to enable him to tekc out the said money'. Again on the two occasions when his cash and accounto were checked by P.1.2 and P.W.3 he td those witnesses that he did not know where the missing money *as, and more specifically he told P.W. 3 that the nanCy was not in the safe Again P.7.3 gave him time from 19.3.7 0 to 21.3.70 during which to refund the money but the cppdflmt failed to I ...2 do so. I the noney in the safe there is no apparent roe eon why the appellent should not have contacted IW 4 ôiring this period and ask him to take out the monek with which to make good the ehortege The evidence shows that the enount of money found to be short wee i270/50, But in the charge sheet the appellant is accusOd of steeling 0.262/50 and therefore the learned magistre.te rightly convicted the appellant for stealing the sun stated in the charge and I cei of thovie; that having regard to all the evidence the conviction was justffied The sentence of two years with 24 strokos was the rthünunprescribed by law. Accordingly the appeal is disnissed in its entirety Delivered in Court at Idwanza on lCth liovereber, 1970 LL A1'ZA, (R. H. ICisang) // 13/11/70. ACTING JUDbE