19740913 TZHC Dodoma

/C4iW2.

IN THE HIGH COURT OF TANZANIA

AT DODONA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.209 OF 1973 ORIGINAL CRIMINAL CASE NO 0 18 OF 1973

OF THE DISTRICT COURT OF RUNGWE DISTRICT AT TUKUYU Before I.H.'Magesa Esq000000000....0000..........0. Resident Magistrate CHRISTOPHER H. NDAKI................. 00 0000 0 0 0 ....... ,Appellant (Original Accused) Versus THE REPUBLIC. ....... 00 000 0 0 0 0 0 0 0 00 0 0 000 Respondent 0 00,0 (original Prosecutor) Cha.ge: Stealing by public servant, c/s 270 and 265 of the Penal Code J U D GM E N T. MAPIGANO AG0J.. The appellant., a veterinary assistant field officer, was charged with stealing by public servant, contrary to sections and 265 27C of the Penal Code and was convicted on that charge. Upon conviction, the learned magistrate took into consideration several extenuating factors and applying the provision of section 6 of the Minimum sentences Act 1972, he placed him on probation for a period of three years0 This is an appeal against the conviction. The conviction was based on the evidence which the trial magistrate believed, to the effect that the appellant had lodged claim for and had been paid by his employer, travelling allowance for two nights at shs-... ,].5/= per night0 The prosecution sought to prove that this claim was fraudulent in that he had not spent thtwo nights away from his station on duty. There was no dispute that he had lodged the claim and that he had been paid the money, shs. 301=. But he contended that he had actually spent the two nights away on duty

and that therefore he had ' not defrauded 'fe Gov€':nme 0 Now assuming that the appellant had not spent the two nights away from his station as the trial court found, it would appear to me, as it appears to the larnl. state attorney who appeared before me on behalf of the Rcpublic that the offence committed would be one of obtaining money by false preténces under section 302 of the Penal Code, rather than stealing as charged and of which he was convicted No'Jever, on my own assessment of the evidencc, I feel strongly that it was not safe to convict the appellant on any offence on the evidence led by the prosecution The public holds the same view. There was only the evidence of two witnesses on which the prosecution depended on the disputed issue0 The first was a woman called Aria Shira (Pw3) whoshusband is a friend of the appellant. Evidence was led through her in order to prove that the appellant had not spent the night of 25/26th September, 1972 at her house at Lübanda Ilima. She stated that the appellant was wont to put up with her whenever he visited Ilima for duty and that the last occas.on he did that was on September 8, 1972. She denied that he spent the nigt of 25th/26th at her p]Lace. That is one of the two nights for which he had claimed and was paid the controversial allowance. The appellant maintained very firmly that he did spend the night of 25th/26th at her

place. He stated that both herself and her ii I husband were not present at the house on that occasion, she had gone to nee her mother somewhere and the husband who is a teacher had gone to another place to work on examination papers0 She appeared to agree that there was an occasion when the appellant had called at her house during her absence, but she insisted that this was on September 8, The appellant called a boj, Charles Sarnbula, who was staying with her and this boy supported his version It is clear that an occasion arose during September, 1972 when the appellant spent a night at her house0 While I cannot say that she was telling lies to the court, but as the Republic properly pointed out, she could have betkn confused the dates0 It is well to note that she gave evidence in June, 1973 9 that is well over eight moths since the occasion0 A long time had therefore expired and it was unsafe for the learned magistrate to rely on her memory, particularly in view of Charles Sabul&s testimony, 7 which evidence essentially casts doubt on her allegation 0 The appellant should have been given the benefit of doubt 0 The second witness was Godwin (PW4). Through him the prosecution sought to prove that the appellant did not spend a nigh{ at Masukulu 'i Septeber 72 for which he also claimed the allowance0 But it is apparent on the record that PW4 was not surer. This was what he

testified in examination in chief. 'I am TANU Secretary at Masutulu I know the accused0 He is Field Veterinary Officer, Tukuyu. On 12/9/72 thc accused caine to Masukulu 0 On this day he did not Sleep at my home. On 12/9/72 the accused slept at the home of one Mwisangu 0 I saw the accused at 10.00 a.m., on 17/972 I saw h:.m last on 12/9/72 at 4 p.m. I am sorry I had forgotton the actual story. The truth is that on 12/9 2 the accused did not sleep at Masukulu. He returned to Tukuyu . I would think that the inconsistency was glaring and that despite his assurthg the court as to what was the truth his evidence as a whole should have provoked suspicio:i0 I do not think he was a reliable witness either and it was not prudent for the learned magistrate to accept his testimony and ct upon it as he did. ' I allow this appeal and quash the conviction. It follows that the ordes for probation and repayment of shs 0 301= are set asie. 13/9/74 D. AG0JUDGE