19721006 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE J1JRISbICTION HIGH COURT CRIMINAL i1 PFEAL No0 55 OF 1972 ORIINAL CRIMINAL CASE J'To 18 OF 1 971 OF THE DISTRICT COURT OF M[JFINDI DTSTRICT AT MUFINDI BEFORE: J.A.P4 MDOE -. JISTRIC'i MAGISTRATE G-ASPAR /o KALINGA , . . , , . , , APPELLANT versus THE REPUBLIC . . ., . . RESPONDENT ARGE. (3) counts of Stealing by person employed in the public service c/s 270 and 265 of the Penal Code. I JUDGMENT ESIUMO,AJ0 This appeal has no merIt and I would accordingly dismiss i-I;. On 15/2/72 the appellant Gapar s/ o Kalinga was convicted by Iringa District Court - by Mr. J.A.P. Mdoe., DistrictLove? Ma€istrate of two counts t st€.ling by person employed in the Public Service contrary to sections 270 and 265 of the Penal Code and was resultantly sentenced to two years imprisonment and 24 etroke. of corporal punish:ient on each =U pursuant to the provisions of the MiniiLi ei.tcncc:; t 1963 hich by then was still operative and he ordered then to run concurrently and was also ordered t,o refund a sun o± shs0 2,136/50 to the District Council Mufindi, then his empioyor from which the said monies eminated 0 This present appeal is against the convictions and he sentences and the compensation order. The facts of the case are simple. It was comion ground that the appellant was the Head .oachor of Ikwega Extended Primary School and in that capacity he was receiving salaris for his fello teachers from one Yasini s/c oe (Pw.,1) who was a Clerk of Mufindi District Council which was paying teacher's salaries in Mufindi District., Similarly the appellant rceived 3iis own salary and that of the teachers under him for the mànths Februaay April and May and he accordingly signed to that effect on payment vouchers (P,,Exhs. A & C)0 Instead of paying those salaries to the teachers concerned on arrival at his school the appellant pocceted the money and converted it tohis own use, It'was a1sdin evidence that the appellant also pocketed the school genral Lunds raised from, fund raising school activities, The Prosecution calJ..ed a tobal of thirteen witnesses among whom included the teachoro ho were the victims of the appeUant's swindling activities. Furthsr evidence revs led that the appellant embezzled even schuui i'e nd WitiSSCS testified to that effect. 0 • 0 • 4 In the face of that fulminating evidence of the Prosecution the appellant chose to make anunsworn statement in which he bialantly denied the charge saying that he had pocketed the other teacher's three months' salaries because he had requested them to give it to him as a loan because he was experiencing some 1rrajp1 robleins which called for immediae settlement. In their evidence the other teachers categorically denied having sanctioned him to pocket their salaries for neither one month not three months. On the weight of evidence before the trial Magistrate, and I may, hosten to add rightly so ,/ rejected the appellant 's Lhe story as bogus and an afterthought. The appeal turns largely, if not wholly, on questions of facts as found by the trial Court and in the view of this Cour± (High Court) on the evidence before the Court below, flO reasonable tribunal could come to a conclusion other than that arrived at by the trial Court which tried the case with Commendable thoroughness. Consequertly as intimated herein earlier this appeal is dismissed. As to the sentences I would only point out for correction that the 24 strokes of corporal punishment should have been awarded in respect of only one of the two counts. Since the law involving strokes is repealed in that aspect this Comment may at this stage appear merely academic but I still had a feeling that it would not be out of place to point it out. On the order I would correct it in that the appellant should not have been ordered to compensate the complainant in respect of money on the C: from which he was acquitted. That was bad in law. • Accordingly I set asidethe order as far as it concerns the amount of money n which he was acquitted by the trial Court. Otherwise, in the final, analysis this appeal is dismiisod. Delivered in open Court at Dodoma this 6th day of October, 1975. E. A. Mwesiuno Ag 1 . Judge. For ApDellant: Absent and unrepresented. For Respent(1io) Mr, Tinabo, State Attorney. 01