19751113 TZHC Dodoma

(/C .'l/L IN THL HIGH COURT OF T,NZeNIA AT DODOI'iA - 'AL'PELLATEJURISDIcTION HIGH COURT CRIMINAL APiCAL No0 78 OF 1974 ORIGINAL CRIMINAL CASE No. 483 OF 1972 OF THE DISTRICT COURT QF MBEYA DISTRICT AT..MBEYAO BEFORE: J.A.P. MDOE' - DISTRICT MGISTRAT. - - DIRECTOR O' PLIC PROSECUTION 0 . APPELLANT - . .. ;.. versus KASPER AMONDUS NGURUWE • 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT0 CHARGE: Stealing by servant c/s 271 and 265 of the Penal Code. S J'UDGME.NT MWAKASENDOJ. . KASPAR AMANDU NURUJE, the respondent in this appeal by the Direcotr of Public Prosecutions was chargd before the District Court of 1'4beya with stealing by servant, •to wit, the sum of shs. 10,236/95 which came into his.. possession on account of his employer, the reya Development Corporation, contrary to sections 271 and 265 of the Penal Code. The trial District Magistrate however for reasons which I find must intriguing:as well as inccmprehensible acquitted the accused and discharged him hence this appeal by the Republic. The case for the prosecution may be briefly narrated as follows At all material times the: respondent was employed by the 1"theya Development Corporation thereinafter referred to simply as 11 EDEC0" "or the Corporatipn") as Accounts Assistant. In this capacity he was charged with the duty of receiving various moneys paid to or a account of the Corporation. And for the proper keeping and custody of the moneys so received the respondent was given a cash box in which he was supposed to keep the moneys at all times. The cash box was thne of those special cash boxes. which are operated on a two or double key system i.e. two keys were required to open.• the cash box and take out the contents of the box. Ti -ic ..espondent was according to the evidence on record, which stands uncontroverted, the sole custodian of the two keys required to open the cash box. He was also the sole custodian of the duplicates of these keys which at all times were kept locked up in the cash box. The system of operation being as described supra it seems to me highly unlikely that a complete bhanger could have access to the contents of the cash box without the active participation of the respondent t2ither by opening the box himself or by handthg over to the stranger the two keys required to open the box. Now we may turn to-, consider the facts found establised by. the tril court. It was clearly ,aiuply established to the satisfactiph of the trial court that he.regponderft in hi's capacity as Accounts Assistant received the sums of shs. 1,498/65shs. 625/55 and shs, 8,112/75 on 7th, 8th and 9th December, 1972 respectively all on account of the Corporation. The first two sums were paid in by Helena Angundule (Pw.3) while the third sum was paid in by Abbasi Mwinjuma (Pw.4). On receipt of this money i.e, shs0•10,236/95 altogether the respondent placed the money in the cash bbx. And there it apparently remained - until 11th DcLmber, 1972 when the respondent on opening the cash box. found it missing.. The responde who alone was responsible for the keys ) to the box could not offer any satisfactory explanation as to how, short of a miracle, the money disappeared from the bOt.: He was accordingly arrested and charged with stealing tie money. At the tiial of the case although thep-rosecutlon plácd before the trial court overwhelming evidence irrcsistably pointing to the respondent as the man who stole the money in the box the respondent elected to say nothing at all about the matter. That being the •0 - 2 - position at the end of the case it seems to me that the trial court, had little choice from finding the r2spondent guilty and convicting him as charged0 However, the trial District Magistrate instead of doing that mysteriousJy after a somewhat circitoi: logic arrived at the undoubtedly erroneous and perverse conclusion that the respondent was not guilty of any wrongdoing 0 Suffice here to set out one passage from the District Magistrate's judgment whfiich more or less typies the Magistrate's biased approach to the case - I quote from the 7th paragraph 5th page of the typed judgment: "It has been known that some people could open doors of houses without having to break' them and even cash boxes0 In the instant case ther' are two pojbiiities, one is that the cash box could have been open by someone else by using similar keys or the accused might have misplaced the keys somewhere and one, who chanced to see them e could have taken them and rush to the office and open the cash safe and stole the money and returned them without accused's knowledge." With respect to the trial Magistrate, I do not think there was any basis at all on the evidence on record for Tciim to embark on this speculature exercise on imaginary doors and safes which best existed only in this figment of his mind. For the Magistrate conjure possibilities whereby the money could have disappeared from the box, possibilities to which there is. no 'evideice from which they could reasonably be inferred shows little,. if any, understanding df hat.his role as a Mgistra€e, is. Be that as it may, on considerE on of 'the evidence on record and having regard to the submission.s made before me by both oun'sel 'I am satisfied that the tria. District Magistrate grossly erred in acquitting the respondent0 There was more than ample evidence placed before the trial court to found a conviction for the offence charged0 . Accordingly I allow this appeal by the Republic, set aside the order of acquittal of the respondent and substitute herefor an order convicting him for the offence of stealing by servant contrary to sections 271 and 265 of the Penal Code0 It is qprdered. Y. N.. N. Mwakaséndo Judge. Judgment: delivered this 13th day of November, 1975 befo±e Mr. Lyimo learned state attorney for the Director of Public Prosecutions and Mr0 'Chambakare 1arned Counsel for the respdiident. .. . N. N. Mwakasendo Judge. Mr0 Lyimo: My lord the convict is a first offender. The offence is one which falls under the Minimum sentences Act, 1972. Mr0 Chambakare: Ivy lord the accused is a first offender. He is married with five children and he:las been working for a long time and during all this time he has had a. clear record. Further, he has parents who depend on him apat'from'his family..I pray for leniency. He is 38 years .ol. . . SENTENCE : . . . . . While I 'have' the greatest sympathy with you in your present predicament I do not think there s much I can dd. on the matter. The law has prescribed the minimum punishment, of. 5 years imprisonment that the court must, pass updn. a person convicted of stealing, money belonging to' a specified aühority under the Mi'ninu'mSentences Act, 1972 wher :e the sums so'stoJ.en exceed shs. '5000/- Though.,I believe the offence for which you have been convicted deservès: to be punished with a sentence more than.the.p.rescribed minimum I am constrained from doing that in view of your hitherto clan rccord and on accpunt of the other mitigating factors. so ably pressed on your behalf by your learned counsel. . 4 -1 - 3 - Accordingly the sentence of the court is that you will go to prison for 5 years' imprisonment as prescribed by the Minimum Sentences Ac, 1972 - I also ordet that you compensate the Corporation i 0 e. NBEDECO the sums of shs0 10,236/95 which you stole from the Corporation0 It is so ordered0 Y0 M0 ) 14wakasendo- ,.VJudge 13/11/75