19740524 TZHC Dodoma

65 1 OtAcj IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.87/73 ORIGINAL CRIMINAL CASE NO.103 OF 1972 OF THE DISTRICT COURT OF SUNBAWANGA DISTRICT AT SUMAWANGA Before I.H.M. Magesa ... .. . ... .... . . .... .... . 1 • . Resident Magistrate EDWARD KIPANTA AND ........ . Appellant ... . (Original Accuseds) versus THE REPUBLIC0000000000000000000.00ee.00.000e000.,.....Respofldent (Original Prosecutor) Charge: 1st Count: Theft, c/s 258 and 265 of the Penal Code0 2nd count: Forgery c/s 337 of the Penal Code. 3rd Count: Stealing by servant c/s 265 and 271 of the Penal Code. J U D G M E N T MNZAVAS J. The two appellants whose appeals are being heard in consolidation were charged with and convicted of forgery and stealing c/ss 337, 265 and 27l of the Penal Code and each sentenced to a total of 5 years imprisonment0 It was the prosecution case that the two accused persons had stolen a G.RR, boolt, forged it and stole shillings 53,750/= the property of their employer; the Mbeya Cooperative Union. In admiting the appeals to hearing this court minuted: 1."The conviction is wholly based on circumstantial evidet. 2. On the evidence PW2ou1d very well have been the perpetrator of the crime or at least an acomp1ice1 Iii his argument in support of. the conviction Mr. Chambakare (who apparently was the prosecutor in the lower court) in his opening address said: "My lord admittedly this is a clear case.of theft by public servant which was very ev!X.iY done so as to leave no direct evidence against the accused persons". I with respect to the learned state attorney agree with his observation. This being the position the hub of the matter was therefore whether there was sufficient circümstancjal evidence to implicate the two appellants with the offences charged. Nrd Chambakare argued in the lower court and before this court that there was sufficient circumstantial evidence to implicate both accuseds with the offences of forgery and stealing. Afound by the trial magistrate in his judgment and echoed by the learnd state attorney in his address before this court, the main prosecution evidence depended on the testimony of Francis Mwakampya (PW2) who apparently was initially the only person who was charged with the stealing of the money. On 19/5/72 the first appellant, Edward, was jointly charged with Francis after the original charge against Francis was withdrawn G On 2/11/72 the prosecution again applied and was allowed to withdraw the charge against Francis and Edward and brought in a new charge - charging Edward and Moses 7 the second appellant, with the offences of forgery and stealing. Francis was discharged and •. .. I a -2 - gave evidence for the prosecution. He told the court that on 10/12/71 he visited the Sumbawanga branch of the Mbeya Cooperative Union and ( collected shs. 53750/= for his primary society. The money was paid to him by Edward, the:lst appellant, who was at the material time employed by Mbeya Cooperative Union as a cashier. It was his evidence that he callected the money under G.R.R. No. 46209 of 10/12/71. After collecting the money he returned to his society and that on arrival he fotnd that his G4R *'Ri, book was not with hiM. He did not report to his superior officers about his tn±sing GR.R book 0 On 10/3/72 a Cooperative inspector (PW3) Inspected Franis' society4 In his books of account the inspectoi' discovered that one G.R.F. book was missing. On interrogating Francis (PW2) as to the whereabouts of this book Francis replied that he did not know where . the book was and added that he thought he might have forgotten it at the Cooperative Union office in Sumbawanga when he collected the sum of shs. 53,750/= on 10/12/71. The Cooperative officer also found that Francis had not entered the money he had collected on 10/12/71 in his cash—book. The inspector proceeded to Sumbawanga Cooperative branch and inspected its books of accounts. His inspection revealed that Francis'.society had on 4/1/72 collected shs. 53 1 7501= under G.R.R. No. 46210. The inspector contacted Edward, the 1st appellant, who told him that the money was collected by Francis (PW2) who was accompanied by a committee member. Francis was interrogated and denied collecting the money. In his defence before the lower court Edward - 1st appellant s told the court that he paid the money on 4/1/72 to Francis and his committee member who had accompanied him. According to his defence before he paid the money Francis went out of his (appellant's) office and after a while he came in and presented to him G.R.R. No. 46210 dated 4/1/72 which appeared to have been signed by Francis and his committee meber and that on the strength of the G.R O R. he paid the money to Francis and his committee member. Moses - 2nd appellant, who held the second key to the safe echoed Edward's evidence that the money was paid to Francis and his committee member on 4/1/72 under G.R,R.,. .4621Ci. Both appellants denied the allegation by the prosecution that they had stolen Francis' G,R,R. book after Francis had forgotten it in their office and that they forged G.R.R. no 46210 and stole the sum of shs. 53,750/= In his judgement the learned resident magistrate came to the conclusion that there was sufficient circumstantial evidence implicating both accuseds with the stealing of the G 0 R,R. book,. forgery and stealing of shs. 53,7501=. I would first like to deal with the conviction in respect of theft of the G O R.R. book. Looking at the evidence of the cooperative officer it is amply clear that for three months Francis (PW2) did not report the loss of his G.R O R Ø book out of which G.R.R, No. 46210 dated 4/1/72 was forged and shs,1 53,75O/ stolen, Indeed it would pppear that had Francis' . books of accounts would not have leen checked on 10/3/72 the :tlossff of the G.R.R. book would not have been discovered. When he was interrogated as to the whereabouts of his G.R.R. book he first replied that he did not know where it wss. Later he said that he thought that he might have forgotten it at Surnbawanga when he last collected money there. And, what is more, the inspector PW3) told the court that Francis had On 10/3/72 not entered in his cr -' of shs. £Ur 12/7]. - Three months ago. .750/= which he had col• Th1 From uxe rep1ie r rLCJZeJ to the cooperative inspector about the G.R.R. book it is amply clear that Francis did not know how his G.R.R. book got missing or if he knew he did not want to tell the inspector the whole truth. And, if I may mention, his failure to report the "loss" of his G.R.R. book was most suspicious... On this very shaky evidence I fail to understand how the trial magistrate came to the positive conclusion that Francis (PW2) had forgotten his G.R 0 R e book in the office of the appellants' let alone his finding that the •0 . 9.13 4 - 3 - appellants stole the G.R.R. book. I now come to the conviction in respect of the forgery charge. One receipt book - No. 93001 - 93100 and receipt No0 46210 bearing the handwritings the authorship of which was in dispute were' sent to the identification Bureau in Da' es Salaani. Also sent to the Identification Bureau weehandwitings and signatures of the two appellants and Francis (PW2)i Iti his report (exhibit C) the Document Examiner says: "lexamined and compared the.writings and signaures,in' the documents and was i.nable to identify. the:disputéd writings ahd signat uEes with any of the specimens submitted ,1 4 In short what the Do'cument,Examine lt says is that handwkitings on the receipt book no 0 9001 to 93100 and the sighatures on reiptNo 46210 were not those of the appellants Nor wee they of Francis (PW2). This being the report I totally fail to understand why the learned resident magistrate came to the bold conclusion that the appellaarits were the people Who forgedG.R.R.No. 46210. There was not the slightest evidence that the appellants were the authors of the writings and signatures in"G.R.R. No 46210. On the contrary expert evidence is to the effect that they were not the people who wrote and signed G 0 R.R. No. 46210. Having demonstrated that there was no sufficient evidence implicating the appellants with the theft and forgery of G.R.R. No. 46210 as alleged in counts one and two s the third count alleging that it were the appellants who stole the shs 53,750/= cannot stand. As I have already mentioned the whole case against the accused persons was based on circumstantial evidence. It is settled law that where the prosecution ce depends on circumstantial evidence "the inculpatory facts must hci incopatib16 with the innocence of the accuseds and incapable c' •zplanation upon any other reasonable hypothesis than that of guilt - Se the decisions in R, VS KIPKERIN ARAP KOSKE AND ANOTHER (1949) EACi 135, GERADI VSR (1972) fl.C.D. 105 - To mention but a few of the decisions on this Woint. I agree that appellants defences in the lower court may not have been very convincing but a conviction is not entered on the weakness of the defence case but on the strength of the prosecution evidence. Clearly this was a case in which the learned resident magistrate should have found that the prosecution had failed to prove its case against the accused persons beyond all reasonable doubt; and should have acquitted the accused persons 0 The convictions cannot on the evidence be supported. They are accordingly quashed and the sentences are heneby set aside. Both appellants are to be released from custody forthwith unless they are otherwise lawfully held. DO DO MA N. 24/5/74 1 1 ' JUD GE ' Appellants absent and unrepresented Chainbakare for the Republic/Respondent.