19800416 TZHC Tabora

H1 11 IN THE HIGE OCURT CF TANZANIA AT TATIORA APPELLATE JURISDICTION (Tabora Registry) CRIMINAL APPEAL NUMBER 107 OF 1979 c/f. Cr.Appeal Nà.115 116/1979 & 114/79 ORIGINAL CRININAL CASE NC 1 OF 1979 OF THE DISTRICT COUIT OF NZEGA DISTR±CA't NZEGA Before: S. .J. Lawena, Esq., Resident Magistrate. FRANC IS MUTASHUBILWA & OTHERS ... ....... APPELLANTS (briginal jccuseds) VERSUS THE PEPUBLIC . . . . . . . . ,. . . . . . . . . . . . . . RESPONDENT (Original Prosecutor) CHARGE: Stealing by Clerks and servant c/ss.271 and 265 of the Penal Code, ap;16 Vol.1 of the Laws. JUDGMENT MUSHI, J: In this case there are sour appeai; which have been consolidated. The appellan's are FRANCIS MUTASHUBILWA - 1st Appellapt and PETER MUKiVA - 2nd App311ant; ANTHONY SHILINDE - 3rd Appellant and SHILINDE SH.J4 - 4th Appellant. he first, scQnd and third ppeilants were charged and convicted under cctioi 27. 25 of, ae 'enal Code and t were each sentenced to seven years imprisonment. They are - now appealinq against such cc.:iiction and sentence. I propose to deàl with the appeals of the f:. rst three appellants first before I consider the appeal of the fourth appellant . SFIILINDE SHIJA,, Sovera facts are un:juted. The thz - ee appellants were Aj employees of the N a tiona l Bark of Commerce at Igunga ranch in Tnbora Region. The firt a:'pellant FRP1CIS was the accountant whiie PETER MuK:;. - nd Appellat:it was a Supervisor and the third ppellan - ANTHONY SHILINDE was a Messenger. That Ss.12Q,000 1 ' was fond missing from the Strongrom and that S1s.119,0OO1= as recovered from Mwlnala areaat the hQme of the "elatijes of 3rd appellant ANTHONY is also accepted. T\&t a the material time when the money was found missing, the Lltrongroom keys (2) were in the hands of first. and second appFlants. It is. also not in dispute that,thest'o.Ii¼iomqas.not broken into or otherwise Interf%a:"ed wih whefl the money was stolen.. it is also aged tha•t,'.n ordz' for the trongroom to be opened,a set of c,ys had' to be Uped atd as such both' 1st' and 2nd appellants had to be present in order to open the safe since each ke,t one ::,et oh 1st and 2nd .. appellant agree tbat the drthe m,ony was stolen which was the day previous to the acü'al dscovery'of missing. money, they had each left the strongrooni lcpys in their drawers but each locked the drawev securely and took the key and 'this was without the knowledge of the other . This is to say that the first appellant did not know that tie 2nd appellant had kept the keys in the drawer and vice versa. In any case since each had taken hit drawer's keys, no one could open the other's drawer. Ho''ever both first and second appellants agree that in so far as b anking Regulations for safe keeping of the stronroom keys were concerned, they were negligent in their duties in leaving the strong±'oom keys in the drawers which was contrary. to regulations6 But dispite the admitted negligence, the 1st and 2nd appellants denied to have participated in the theft0 The third.appellant - ANTHONY said that he does not handle strongroom keys and the strong- room was not broken into. T:e third appellant denied any involvemeit In the theft'and said that ROSE - P14.3 told lies against . The moat. Important evidence. in this case was that of 'ROSE - PW.3. 1'his ROSE was living with the third appellant who was his relative. The third appellant gave ROSE a bag which sltV was to take to Mwajnala at their third appellant's house where i' was to be kept safely and that he (third apel1nt) wouli go soon. The bag was found to contain $hs. 119 1 000/= out of Shs.120,000/= stolen from the bank. R)se revealo the information to the Police immediately ,rhe was cotacted. There can be no doubts what- soever that .ose was , truthful witness and the trial magistrate wns fully: justified to believe her. testimony. The effect was Vheref6rs3 that Anthony Shjlinde' - 3rd appellant gave Rose Sh.119,000/. Where did Antohziy 'get the money? iLI'ISI WAMA who was a watchman of the 'rk had seen the tb.rd appellant on 29/12/78 at about 6 100'p.m.arrying B' wrapped huidl on a bi.cle h1's,pppellt''s óng from the Berik djLrCctlon djkO iwiien }IA ISI clledte appellant f) ( 1 said that it was a mere coincedence that the two appellants left their strongroom keys in the rirawers coincidentally the same day? And can it be said that a third party miraculously became aware of the facts and took the opportunity although there are no grounds for such supposition? On the facts as they are, the4 irresistibly point to the appe- llants as the ones who in concent opened the strongroom and stole the money. This is the only unavoidable conclusion on the facts. This allegatien of leaving the keys in the drawer was an attempt to create a doubt in the chain of the evidence which very fortunately was not successful. It was not therefore a question of :nadvertance that the keys were left in the crawers, if t all, but a calculated act to confuse the situation te hide the commission of the crime. It was unfortunate that the learned trial magistrate fouPd that the appellants were negligent and thus convicted them for the offence, This was a misdirection. However despite this misdirection, as have already pointed out, on proper direction, the appe1l.nts would still have been convicted.. The appeals against tonvictions for the first and second appellants are dismissed. For the first three appellants - Francis, Peter and Athony app.pals against cnvtctions.are dismissed. Regrdi:g the senteuces, ech of the tlu'ee appellants were sentebccci to Seven (7) year imprisonment. Both Counsels for thc appeLla,ns ad zpondent re of the view that the sentence of seven yeers was exceS$ive in the circumstances. They argued that the appellrTttS were first offenders and that they did not benefit from the crime aS the whole amount was recovered. This was one of the cases in which the Police acted with swiftness and managed to saLvage the whole amount Vtolen. It would appear that in the cir,cums'ances of this case, the sentence of seven (7) years is rhcr high. The sentence is accordinglY reduced to five ye&rs imprisonment. I nob.' turn to the appeal of the fourth appellant - Shilindo Stija. This appellant - Sh:linde i1 one Salume 'wandu who did not appeal were convioted for ,receiving stolen or property suspected to have been unitwfullY obtained c/s 312(1) of the Penal. Code and wcr• sentered to three years ipriaonment. It was Iose who sent the money, to Mwamala Village to the relatives of! the tbxd appellant. S (5) According to Rose, the third sppellant told her to hind the bag to the father of the third appellant to keep it ma safe place and that the third appe.lant would 'go in •a day or two. The furth appellant, who is the fatherof the(third appellant was not present. Instead hose handed the bag to the mother of the third appellant.. The Police went the following day and were shoqt-i the money which was kept in the pots hidden under the bec' ih The house of Salume Rivandu where the money had been stnt by Shi.linde hij&e 'The learned triaI rgistrate found that since Shilinde took the money to Salume hwandu and since Sluriie kept the money in the pots and hid it under the bed, those actions conptituted knowledge on the part of $hilinde and Salume that the money must have been Aojori or unlawfully obtained. with respect, I do not think thei wevidence to support this finding. There is noting unual about Shilinde taking tLe money to Salume. It is quito possible that Shilinde had no where to keep it in safe custody as per th.rd appellants instructions. The fact tht Salqjne kept money in tPe pot and id under the bed, is nothing unusual in the Village. Wbe - e else could she haye'hi4on the money. T11 money is vipt nprmally hung in the ttees like 'nize. honey is somet4ng that is usually hidden. Yoreover, the appeflant and Sa3me *eadly showed wh're thq vaoncy was when the ã'olice arri'y-ed. In any event, I do not '.ftink that Shilide ttid Salum hd received the money in the sense of the meaning attached t4D Section 311(1) of the ?rna1 Code. The mosey had only boeket there for the tb.rd appellant to come and collect t.t. Neither Shilinde nor Sajume had ri1'js in themotLey atually or ccstructivcf. The appqal agist Shilirde wiiust b allowed. The pcvjction is quashed pnd the 8eflte set aside, he r*tst be set •t libey forthwi$h unXess otherw.se lawfuJ.ly held, Similarly using my rtision) powers, I he COflyiCtion agaiust S.ume /qndu aw set aid$ tne sentence. He must be re].sed forthwith un)qs otherwise 40 ,01rully held. N. X. hUSHI, flJDGE. i6.ti.80 11 (6) Coraz: N, Ic. Nushi, J. - Appellns... Present. Chai.la for respondent, Judgment read in Chairbers, N. N. I(US.HI, JUDGE. 1 I CERTIFy THiT THIS ISfi TRUE CCPY CF THE CIUGINAL. •.1 - , -'- S1AT REGISTRAR I - .5* 5 ' 7I9h' ä'U7 ?F Sm -I