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L IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.103/73 ORIGINAL CRIMINAL CASE NO 451 OF 1972 OF THE DISTRICT COURT OF MBEYA DISTRICT AT MBEYA Before !.A0P. Mdoe.,00. 00000•0000000000040 • ...... . District Magistrate DIRECTOR OF PUBLIC PROSECUTION....... . ••• ..6..00Appellant (Original Rccused) versus AIDANKAPINGAO •Respondent 00000000 0000 0 000 00000000 00 00000 0000 000000 0 0000 (Original Prosecutor) Charge: Theft by Servant c/s 265 and 271 of the Penal Code 0 J U.D G M E N T MAPIGANO AG. J. The appellant was charged with and convicted of stealing by servant, contrary to sections 265 and 271 of the Penal Code. He was acquitted by the district court and the D.P.P. being aggrieved by the decision of the district court t is now appealing against that acquittal. It was established and indeed it was not in dispute that the appellant was 9 during 1972 1 employed by the Mbeya Region Co-operative Union and was stationed at Uyole .where he was the manager of the Co- operative Union's Consumer shop. On 17/11/72, Joseph Sufiani PW3), an inspector with the Co-operative Union, checked the accounts of the shops He discovered that there was a deficiency of goods worth shs. 13,339/45 9 He ascertained this loss by examining the lists of the goods which had been supplied to the shop, by examining- the.goods which had been sold, those still in stock, the amount of the money,proceeds which had been remitted by the appellant to the Co-operative Union's head office and by taking account of the money proceeds on hand. It was also common ground that the appellant was sldepihg in the same shop building and. that he had exclusive custody of the keys to the shop and the cash box 0 Further, there was no indication that the shop had ever been broken, into. In his defence the appellant put up the possibility that the goods may have been stolen by his assistant, Lawrent Mgeni (PW5) or by an outsider, possibly by entering the shop through a gap which obtained between the roof of the building and the wal1. He said there was no watchman to guard the shop and as such a culprit could have entered the shop and stole the goods without any interference during when he was absent. In coming to the decision that the charge had not been proved beyond reasonable doubt, the learned trial magistrate gave three main reasons. The first reason is, and I quote from the judgment.:- "In the instant case 9 the accused was handling very large sums of money when such large sums of money are handled by the person in charge, as in this case 9 the accused assisted by this assistant, the possibility of sums straying due to fault of his assistant or other, cannot be altogether ruled out". 0 e 0 .. . . . The second reason was that and I also quote from the judgment "The fact that there was a wide gap between the roof and the wall on top, this could have easily afforded one to penetrate into the said shop and made away with some few items during the night or in the absence of the accused and his assistant." The third reason was technical. The learned district magistrate was of the view that the appellant could not have been saidthat he stole the goods because he had the authority to sell those goods. He thought the appellant .ouçht to have been charged with the theft of the proceeds from the sale of those goods. He observed that the facts of the case were similar to those in the case of Pindrea Otieno v R (1970) H.C.D. Accordingly he held that the charge was incurably defective. The petition of Appeal raises two main grounds, viz, j• In arriving at the conclusion that there was a possibility that the Assistant Manager or any other person might have misappropriated the lost goods or stolen them, the learned magistrate dif.d not assess and evaluate the evidence of PW5 1 PW2 9 PW3 and the courts visit to the scene, 2. That in view of the evidence on record, the learned trial magistrate erroneously followed the decisions in Azidrea Otieno (1970) H.C.D.139 which decision was based on its own merits." With regard to the suggestion that the sums of money making up the loss could have strayed due to the fault of the Assistant Manager, it •is important to note that the said Assistant Manager was appointed on 9/9/ 72 and that this loss was discovered two months later. It was bot. contended that there was any occasion when the Assistant Manager was left in the shop alone for an appreciably long time and I therefore think that it will be stretching belief too far, to hold that the said Assistant Manager might have occassioned such a huge loss within such a short time, under the appellant's noses. With regard to the suggestion that someone else might have occasioned the loss, I respectifully fail to imagine who that someone might be. With regard to the suggestion that the goods may have been stolen from the shop during the absence of the appellant, there was p as I have pointed out above, no indication that there had been a breaking into the shop 0 However, the learned magistrate appearedto say that this did not discount that possibility because the breaking, into or the entering into the shop, might not have been noticed by the appellant. It was contended by the appellant that a gap between the wall and the roof existed and that this could afford penetration into and out of the shop. Inspector Raphael (PW2) who visited the scene s thought that the gap which existed could not afford easy penetration, while the Assistant Manager (PWS), thought that it was impossible for one to enter the shop through the said gap. The court went to view the scene on the accuseds motion and it was of the opinion that one could enter the shop through the said gap though with diffièulty. It seems to me that this view is similar to that of Inspector Raphael and therefore giving the appellant the benefit of doubt, I.accept that there was a possiblity, albeit remote r that the goods may have been stolen by someone else who, might have entered the shop through the gap during the appellant's absence. I shall next consider the technical issue concerning the charge. The appellant in the instant case was charged with stealing goods and it was not in dispute that he had authority to sell those goods. In Otieno's case which the learned magistrate thought was in all fours with the present one and therefore binding on him the appellant was charged with and convicted of theft by servant s the aieqationbeingtbat as a depot Manage, he stole, goods to the value of shs, 21,194/09. Platt .1 considered that the charge was defective on the ground that the appellant's fraud was to.mL8appropriate the money proceeds of the sales of the goods and not the' goods thensel'ves, in so far as he was entitled to sell the goods. Howe,er, as pointed out by Mr. Chambakare who argued t 000 V 0 0 0 0 0 0 0/3 this appeal on behalf of the DeP.P • , it would appear that the appellant in Otieno's case had in fact sold the goods and only misappropriated the money proceeds.from the sales 0 In the instant case there was no evidence that the appellant had sold the goods at all. A charge of theft (by conversion) could in my opinion be properly preferred against him. Nevertheless, forwhat I have stated above I do not find any sufficient ground to disturb the decision of the triai. court. Consequently this appeal is dismissed 0 D.P. MAPIGANO AG. JUDGE