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IN THE -1IGH COURT OF TANZ\NIA 'T TOA AtP.ELLATE JURISDICTION HIGH 'COURT CRIMINAL AlPEAL N . O. 191 OF 1976 . .. -- -- -------- ------- (rib1 ImnI 'C 6Np.221 of '1976 of the District .Côurt of Tabora District at Tabora - E. J. NYAMASAGARA, R.M. EMMANUEL RWEBANG]LA APPELLANT if (Original Accused) if vrsus THE REPUBLIC • . . . . • • • • • RESPONDENT (Original Prosecutor) 'CHKRGEf'' .éI1ng'by' plet 'ih Public. Sërice c/s 270 &. 265 of the. Penal C6.dë'Cp'I6 Vol.1. of. t.he,:Law. S JU. p G M.:E .N T , ' .; ' :. ••. .... . The.appellant.,Ernmanuel iwebangira wascharged With : . and :if àoiivicted of,. Stealing'b.y. Servant,.,c/ss.. 26 :5 an .?:Q;ofthe. Penal Code., ...waS:comtd to prisori.for'three yars."..}.{ei . dissatisfied with that decision and has appealed to this court. At the material time, he was a clerk at Kazima Gbverrirnent.S'econdary School.in Tabora.Town and therefore a pubic., servant in. terms o the law'. The charge averred that he stole 28 : . batterie;ialud at shs.417/60., the property of.the,G,overnment,.,. Which came jnto . his possession on account of his employment. He pleaded not guilty to the charge.. Thee was no dispute and there was evdnce to..esab1ish, that . on 4/3/76. he procured tát.. number .f batteries . from the Govt0 Stors•ij.Tabora, on the .sength of a,requisition.'. He.agreed that. he had himself pr,par.ed.and signed the requisition on behalf of

his superior , the hemaster..of the school. He admitted that he had not been directed by any one. todq, so.'.. According to .theHeadmster P.Waila, the schoo1 .di,dnot have suficient funds to meet the price thereof. And it was commor.grouad..thatthe.i.hole.lot of . batteries were not brought to t.he, schoo10 . The incident was discovered by. the Headmaster on the same, day and .e. queried the appel'lant about it. He, the appellant, replied that he had entrust3d the btteri:s t.. re Richard Tohias. Rut the said Richard Tcias - 2 - The appellant stated on oath that he ordered the batteries in good faith, albeit withb\Tit authority from his superiors He said that they were badly requiredinthe.school's physics laboratory. He fetched them from the Government Stores and from there he rode his bicycle and proceeded to anotherp1•ace to attend to another business. On the way,oñe trre got punctured and he was in the process of mending it when Richard Tobias, whem he described as his friend and neighbour, apeadpn abicycie by chance. Richard then offered to relieve him of the batteries. He took them promising to deliver the same to the school. It was, the appellant said, about 12.30 mid-day. ,ie went On .to say that he returned to school one hour later and that sooner or later the Headnaster asked him about the batteries. He replied thate had,entruted, them to another man and undertook to

bring them. He thqn set out to look for Richard and met with him in town. But Richard put him off and by evening he had come to believe deceived him. He went back to the school and raported to the Headmaster that he had been let down by his friend., He was then sent to the Police Station. ,..::T,he learned trilmagistrate considered the evidence and formed the:dpinion .that t1'e-cir'cumstnces in which, the appellant prepared the equiition and c011ected thbatteries 4 proved bey3nd'' a reasonable doubt that he fraudulently took those 288 batteries frornthe GOvernment'S'tore. 'I think the learned magistrate was right; According to' the 'üidispu€eevidéiceof 'the Headmaster, th'éappellan't had no authotity whatever to'la'ce such order. The appellant, ' as it were, cuietiy prepared the 're'u s i.on 'signed it' himself and proceeded to co1lecL'Lh 'teries0 It could be that he gave them to Richard Tobias. But 'if it is so, then 'there is no doubt that Richard Tobias was i.n' league ith the 'appellant to' defraud the Goverme -it.,' Fr it appea'rs that when the appellant returned to the s'chboi' et I 0-30 "p m:0 1 he aid not bother to ãcertaih' whether the batteries had b'een' délivered I think upon'th''hole. that the conviktion is soiihd. With regard to the' aentence, nothing can be done about it It is the rninimunr r dribed by law, Accordingly, t re s"din ,i,ts entirety. Prónbunced in court. Mr.' Sehgwaji for thReublic' Appellant in perso n. I