N

IN THE HIGH COURT OF TAI'ZA1'IA AT DODOMA RGH (. c c AP'ELLATE JURISDICTION APR9? APPEALJ NO0 250 OF 1974 ORIGINAL CRIMINAL APPEAL NO0 364 OF 1973 OF THE DISTRICT COURT OF SUMBAWANGA DISTRiCT AT SUMBAWANGA BEFORE J. L. MWALUSANYAO 0 0 0 0 ORESIDENT MAGISTRATE DIRECTOR OF PUBLIC PROSECUTIONS0 0 0 0 0 0 0 0 0 0 0 OAPPELLANT VERSUS 4 JOHN SIO UMELAO 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ORESPONDENT O Chara: Stealing by public servant c/ss 265 and 270 of the Penal Co... J U D G E M E N T MNZAVAS - J. - This is an appeal by the Director of Public Prosecutions against the acquittal of the respondent in Suinbawanga Criminal Case No. 364 of 1973 The respondent, John Umela, was charged with stealing by, public servanL c/ss 265 and 270 of the Penal Code0 The particulars of the bffnce read: I' "That John s/o Umela charged on 20th day of December, 1973, at Sumbawanga Township, within the district of Sumbawanga, in Mbya Region, in the United Republic of Tanzania, being a person employed by Sumbawangà Co-derative Union Ltd as a co-operative clerk, did steal cash Shs0 10,000/- property of the said Sumbwanga Co-operative Union Ltd which came into his possession by virtue of his employment0" The following facts were found by the lea.tned resident magistrate., and they were not at al. in dispute: The respondent was employed as a secretary by Sumbawanga Co-operative Union end was at the material time stationed at Sumbawari co-operative society. He had been so employed from 1/10/73 the day he took over from one, Herman (Pw7) a former secretary. Apart from the usual accounting documents relevant to his work as a secretary of the union, the respondent also took over from Herman one key for the safe, one key for a cash-box two keys for the office and two keys for a cup-board in the office. On 20112/73 the respondent collected Shs. 30,000/- from Mbeya Region Co-operative Union, Sumbawanga branch0 The money was to be paid to primary societies so as to enable them to buy produce from peasants. On the same day the respondent paid Shs0 10,000/- to Sintal primary .socity through its secretary, one Zacharia (PW5)0 This left the respondent with a balance of Shs. 20,000/-. .12 . . ./2 In the bvening of the same day the respondent lockcd the Shs, 20000/- in his cash-box closed his office and went hbthe. From the evidence it was about 4.30 p0m. when he left his office. Next morning (21-12-3) the respordent came to his office as usual; arriving there at about 8 a.m. He opened his cash-box. and on counting the money he found Shs. 10,000/- Only. SLs 0 10,000/- was missing. In his defence he argued that as he was only handed one key to the cash-box it was possible that a person with the duplicate key to the cash-bo may have entered the office, opened the cash-box and stole the Shs, 10,000/-. The respondent also acgued that as he was handed only two keys to the office; one key to each of the two doors to the office, the thief must. have gained entry to the office using duplicate keys to the doors. In his judgement the learned resident magistrate says: d ..... . ... .."On the evidence I do find that the sum of Shs. 10,000/- is really missing and the accused i the one responsible for the loss. .......The accused has argued that tie money could have been stolen in the intervening period between the me he locked it in the safe and the time he found it missing." He then continues; ......, ..."The accused had rigorouEly argued the question about duplicate keys and I think his point has some merit, .0000000009The duplicate keys could ha been in the hanos of any official of the Society without the knowledge of both the accused and the witness PW7 ...... .,.,,.,.For one.thing the office is closed at 4.30 p.m. while the watchman reports on duty at about 6 p.m. During that intervening period anything could happen. The other thing is that the watchman is not above suspicion as one cannot rule out the possibility of the watchman colloborating with the .ntruders and they silence him with some money obtained." The learned trial magistrate then quottd the decision by 4 El-Kindy J. (as he then was) in.MWANZA High Court Cr. Appeal No. 489/1972 and found that the prosecution had failed to resolve the question of duplicate keys to the doors and to the cash-box and acquitted the respondent. While the learned state attorney conceded with the learned resident magistrate's observation that there was th. question of duplicate keys to the cash-box, it was the learned counsel's argument that the question did not, on the evidence, raise a reasonable doubt as to the guilt of the respondent. It was the Republic submission that in coming to his conclusion the trial magistrate had failed to look et the evidence as a whole and that he put too much emphasis on the question of duplicate keys to the office and to the cash-box. It was also argued that the learned resident magistrate erred in relying on the above-quoted High Court decision as, it was argued, the facts in that case were different from the facts in this case. The respondent's defence was the same as in the lower court, As it was held by the Court of Appeal in DINERRAI RANKRISHAN PANDYA VS R. (1957) EA 336 in a first appeal the appellan is entitled to have the appellate court's own consideration and views of the evidence as a whole and its own decision thereon. In the present case there wasundisputed evidence that the cash-box was handed to the Sumbawasi society with only one key. Herman (PW7) the previous secretary used the cash-box with one key for about. 10, years that is from 1963 to 1973 when he handed hi.s work together with the cash-.box to the respondent. For ten yt.ars it never occured to Herman (PW7) nor to the higher authorities of the union that there was any danger of money from the cash-box being stolen simply because there was only one key to the cash-box in their possession. Indeed for the period of about ten years when Herman (PW7) was in charge no theft had occured, at least not from the cash-box. The respondent took charge of the office and the cash-box on 1/10/73 from Herman (PW7), and about three months later Shs. 10,000/- was stolen from the cash-box after the accused had kept the money totaling Shs. 20,000/- in the cash-box and after he had closed the doors to the office a The doors and windows were found intact so was the cash-box0 The night watchman (PW6) arrived at the office building an hour or so after the respondent had left and remained there quarding the building till next morning and left to his .hous.e after the respondent had arrived at his office, about 8 a.m. This watchman (PW6) has been ' doing the same work, that is guarding Sumbawasi cooperative society office for four years. In his defence the accused said inter alia: .o.bo..."Oflthe morning of 21/12/73 I found the watchman outside 'the office as usual 0 I made a check of the building that it was airight, then I discharged him to go home. I opened the doors and went into the office. I opened the cash-box and it was in the condition in which I left the previous day. I wanted to check if the money was there." From the above one would ask himself as to what made the respondent so "suspicious" as to start checking the building to • see if all was well. And one would also ask himself as to why the respondent was so"suspicious'%as to immediately start checking the contents of the cash-box. Of course it could be argued that the respondent's behaviour showed that he all the time was worried about the safety of the money because he had not kept the cash-box in the safe, as he normally should have done, because the committee member who was keeping the 4 second key to the safe was absent. If this was the reason for his behaviour it is however difficult to understand as to why he did not keep the cash-box in the police station 0 The fact that Herman (PW7) worked as secretary of the society for about ten years using the same cash-box without any theft notwithstanding that he,like the respondent, had only one key to the cash-box, tends to support the Republic argument that the possibility of a person other than the respondent being the thief is remote.. The money was stolen from the cash-box hardly three months after the respondent had taken charge of the office from Herman (PW7) The building was intact and so was the cash-box. These facts added to the evidence that the respondent was the sole custodian of two keys to the office as well as the key to the cash-box tended in my view to support the prosecution case that the accused was the person who stole the money, There remained, I agree with the learned resident magistrate, the possibility that a person with duplicate keys to the office as well as a duplicate key to the cash-box could have been the thief; but with due respect to the learned resident magistrate, the totality of the evidence in this case showed that such a possibility was remote. Dealing with the question of the burden of proof in a criminal charge Lord .Denhing had this to say in MILLER V MINISTER OF PENSIONS (1947)2 All E.R.372 .00/4 .14 "The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable, the case is proved beyond all reasonable doubt, but nothing short of that will suffice." In the present case for a person other than the accused to be the thief that person must not only have been in possession of duplicate keys to the office but must also have been in possessIon of a duplicate key to the cash-box. Such a possibility is possible, but on the facts of this case not in the least probable.. As to the decision of this Court in Hwanza High Court Cr. Appeal No. 489/1972 on which the learned magistrate Wholly relied in ordering respondent's acquittal, I fully agree with the learned state attorney's argument that the facts in that case can clearly be distinguished from the facts in this case. d In that case a the learned resident magitate should have known (as he is the one who also tried the cas), the cash-box for which the accused held only one key when the rnoey was tolen was kept in a safe. The accused did not have the keys to the Safe. There was evidence that the accused in that case had wfltten a letter to authorities inquiring the whereabouts of a duplicate key to the cash-box but his inquiries were not answered. These facts added to many others of which I need not go into greatly tilted the totality of the evidence in favour of the accused person in that case. It is not so in this case 0 The accused's l appeal in the case relied on by. learned trial magistrate was not uphel d,b ause there was evidence that Aa duplicate I•. key to. the cash-box was in the hands of a person other than the accused, That evidence only tended to confirm other evidence that a person other than the accused could have been the thief. For the above reasons it is my view that on the facts as found by the trial magistrate he should have convicted the respondent. I therefore allow the appeal and send it back to the trial court with direction to convict and pass sentence appropriate to the offence. Kinabo for the Rep/Appl. l,. Jr N. S. MNZAV Respondent present in person, JUDGE