19771017 TZHC Mwanza

IN THE HIGH COURT OF T1\NZ1"\NIA t\T MWANZA APPELLATE JURISDICTION HIGH COURT CRIMIN;,L APPEAL NOo 114 OF 1977 • ( Original Criminal Case Noa 73 of 197.5 of the District Court of Sengerema District at Sengerema - Before M. 3~ Kabibi, Esq; D. M.) DEOGRATii·1.S A. R 1-.JECHUNGURA. O o o O O O O O O O O O O O O O O O O O O O o O O O O O O O O O O oAPPELL,,NT versus THE REPUBLICooooooooooooo 0 o ooooooaoooooaooooooooooooooeGoooRESPQNDENT 0 CHi\RGE: Staaling by Public Servant c/ss 270 & 265 of the Penal Code. JUDGEf•iENT LUG,:..KINGIR1"\ ~ J. : . . . The app(::llant was convicb~d of st.:aling by public servant c1nd sentenc,~d to :t'i V•;; years imprisonment. He w.:-is /.1.cting H1:!admast,2r of Sengerema Secondary School at the time of the all~gad th~ft. Th~ charge alleged that b""tween Janu,:iry and 18 June; 1975, he stole 8,956.,45 the property of th0 school. After taking into ac~ount certain demonstrable paimenfs th0 trial magistrat2 found that the amount actualli not accounted for was 7,433.45. He convicted the appellant of st2aling that amount .. I had co~siderable difficul ~with this cas8. Lib:? the L:,:arncd State Attoiney, who_did not supporf the conviction, I was unable to reach any of the figures stated in the ch,rgc or arrived 0t in tb,e judg~rnent of the court balowo In fact, it raguires ~he auditor (PW1)j the magistrate who first tried the cas,.=: and th~ magistrate who concluded the trial and wrote the judgement; to understand the entire r,;:;cord 0£ the trial court. I have therefore found i t impossible to proceed by the figures mentioned here and there.. They ar8 unreliable and thr,~refore uns~fe. In de~iding this app~al I will r0sort to practice and procedure w~ich also appear to have been violated .. According to the auditor, the appellant allegedly stole a total of 8,956/45 consisting of 5,011/70 in unpaid salaries; 4,654/25 in c.::ution money; 574/= in shop shares and profits; and 1501/50 in revenue from sale of empty sacks, etco (In fact, unpaid sulari2s would seem to amount to 10,411/30 according to figures suppli ,d by th~ same auditor but those ai:e the complic,::tions I dannot with aJlY diligence comprehend);,; It is evident from the, above i terns that the charge WDS duplex. Caution and ~hop moneys would appear to me to have be~n the property of so~~ indi victuals rathar than the~ school~ that is; if I do not misunderstand the evidcnc'= too much. They should th· refore have be<~n the subj ...:ct of ' separat~ counts of stealing by agent. The appellQnt was gravely prejudic2d by th0 duplicity .. There was evidence of certain payments which wen.~ accept0d by the trial court. Wh1.;n those are taken into consideration it transpir~s that the money which prop,~rly belonged to the school was much less than 5~000/=. Had this b02n established the appellant would not have b2en liable to the~ minimum sentence of five but three ye~rs. The position being thus inscrutable i t is ii, fact unsafe to say that any lo.ss, let alone theft, was proved. With these doubts in mind and the duplicity spoken of, I can find no basis Ear sustaining the conviction. T.h2 appeal is therefore ullowed and the conviction and sentence set ~side. The appellant should b~ rel~ased from custody unless further lawfully h,=::ld .. MWANZAo 17/10/77,.. ,,---l~~~ ~ · 3 0 Ko~ LUGidaN_~IRA JUDGEo ·