19801022 TZHC Tabora

JT ThBO. LP?ELLATE J SDICTION (Tabora Registry) (Ha) ORIMINPL APPEAL NO.74 OF 1980 ORIGINAL CRIIINIL CiSE NO.262 OF 1979 OF THE DI3TRICTCOURT OF NZEG DISTRICT AT N:EGA. Before Nkuhi Esq., Resident Magistrate DEOGRITIIS iNTHONY .................. JIPPELLANT VERSUS THE REPUBLIC ........................ RESPONDENT aHRGE: Stealing by person employed, in. public service c/s 270 and 265 of the Penal Code Cap.16 of the Law. JUDGMENT CHIPETA, J. Before Nzega District Court the appellant, Deogratias nthony, was charged with and convicted of the offence of stealing by a person employed in the public service c/ss 270 and 265 of the Penal Code and was seriterced to three years imprisonment. He now appeals. - The proseeut:.on's evidence was that at the material time the appellant was a me ssnger at Nzega Urban Primary Court. In addition to 'his other duties, he was responsible for collecting revenue and remitting it to the District Court at Nzega. For this purpose s the appellant was issued with receipt books and a Revenue collectors' Cash Book, hereinafter refeired to as R.C.C.B. On 5th !pril,1979, one Kashindye Mihambo (P.W.4) was fined Shs.3001.- and ordered to pay Shs.200/- as compensation to one Kashin'iyo Ntang. That wzs in respect of Nzega Urban Court Criminal case No.60/1979 (Exhibit A). On 9th April,1979, in the presence of P.W.3 and one Mihambo Kashindye (P.w.5), P.W.4 paid Sh.'500/- to the appeUant out of which the appellant cave Shs.200/- to P.W.3. These three witnesses were positive t3hat the ap.pellant d.id not issue P.W.4 with a receipt - a he ought to have done for the Slis.300/-. • On 10th 1j1pr'il,1979, one Jordan was fined Shs.50/- and was ordered to pay Sh r. as compensation to one Ally Shabani (P.w.6). That was in respect 6f Nrega Urban Court Criminal case No.68 of 1979 (2xhib±t B). 7ordan paid Shs.100/- to.the appellant who ther, paid. Shs.50/- to P.w6. The appellant then told P.w.6 Jordan that the'receiot book was finished 0nd that he woulct ±ssu.e the reQeipt for the Shs.50/- later. He never did so. On 17th May,1979, one. Tuji (P.w.l), who was the trial magistrate in cri'minal case No.60 of 197c, checked the appellant's .... -2- oaks and found that ... Sas.3OO/- had not been accounted for. o he swoad ad quesrioned P.7.4, P.W.3 and P.W.5 who old him that.,they.had paid 't noney to the appellant out that the appellant had no issued any receipt for the money. He thQnchecked the receipt book, the R.C.O.B and money Exhibit and found. that 'that - had in fact not been accounted for. Earlier, on 8th May,1979, one Mnyema (P.W.2) who was the trial magistrate n criminal case No.68 of 1979, checked Exhibit B and discovered thst there was no trijblicate copy of the receipt f or Shs.50/-. He then checked. the R.C.C.B and found no. entry for that amount. s P.71.2 was aware that the money had already been paid to the appellant, he asked the appellant about it, but the appellant failed to give any satisfactory explanation. The matter was then reported to police, and appellant was accordingly arrsted and charged. Both the receipt book and the R.C.C.B, however, disappeared. In his dc-fence, the •.appella'nt said that in respect of the Shs.300/- he issued receipt No.402388 to Kashindye; and in respect of Shs,50/ he caid that he issued receipt No.402395 to Jordan the :aext day, but before he could hand over the receipt, h.ewas'arrdsted. Before this court, the appellant repeated his stth'y and addd., for the first time,..that he gave the money to one William, a clerk at the Dtrict Court. On that evidence., the learned trial magistrate found as a fact that the appellant did receive the money in both cases and that he never issued any receipt in both cases and failed to account for the money. He accordingly convicted the to appellant as charged. The learned trial mtrate had the advantage of'seeing and hearing the witnesses, an advantage which I do not have, and found the witnesses to be truthful. 'On my own view of • the evidence, I can See no reason to fault the learned magistrate's findings and conclusions. Both the oral and documentary evidence was very eloquent. It was clearly proved that the appellant failed to issue receipts in respect of the two amounts and subsequently failed to account for the same. These witnesse, some of whom were simple peasants, had no reason to frame tie appellant. The appella's claim that he received. the Shs.300/- on receipt No.402388 is rebutted by. the evidence of P.1.1 which is to the effect that that receipt was in the name of one Mwajuma and :aot Kashindye, and thre was no receipt in any of the two cse files. This was almost a monthafter the appellant had rcoeived the money. The appo11nt's claim that he gave the money to 3 a clerk ce1lod William is clearly an afterthought. He never W - said so at the trial nor did he ish to call the said. • William as his witness. In my view, therefore, the conviction was fully justified. I respectfully agree with the learned state attorney • that it would have been better if two separate counts had been framed as the amounts were roqoived on separate occasions and in respect of different cases. However, and as'the.loarned state attorney appreciated. 9 this error in no way piejudioed the • •appellant. . . Is to the sentence, the appellant cannot be heard to complain against it as it was the,. stitutory minimum. In fine this appeal is dismissCd in its entirety. fdlx ~1 1~ B.D. cHIPETA J. H Delivcrod in open court it 1'abora this 22nd day of October, • 1980. . • . >• •.- 1_4 1 B.D. CHIPET J. 1 11