1970101st TZHC Mwanza

Hie. IN THE HIGH COURT CF TANZiIA S 'i JT 1611INZP4. Lppo1lata Jurisdiction. V CRIMINJL APPEAL NO.433 OF 197 0 - Original Criminal Case No.26 of 1970 * of the District Court of BukDba District at Thikoba Before H.IViuccadam, .II. GRSHON MYAKJ. . . . . . . . . . . . . . . . . APFELLANT(Original Lccc1 Vs. THE REPUBLIC. . . . . . . . . . . . . . . . .RESP0NDNT(0rigina1 Proeco.) CHARGE: 1st Count: Stealing by parson employed in Public service C/S 270 and 265 of the Panal Coda. 2nd Count: Forgery c/s 337 of the Penal Code. 3rd Count: Parsonating a Police Ufficor c/s 100(2) of the Penal Code. -- 4th Count: Destroying evidence c/s 109 of4tll IàICode. !, (. JUDGMENT. MNZAVAS, Ag.J. The appellant was charged with for_cdiiiits - nam1y sto1ing by person employed in public service c,65 and 270 of the Penal Coda, for- gory c/s 337 of the Penal Cod e, personating a police officer c/s 100(2) of the Penal Code and destroying evidence c/s 109 of the Penal Code. dc was convicted of forr'ery and sentenced to 12 months impri. onment and - acquitted regarding the other counts. He is now appealing to this court against the conviction and the sentence. It is not at all in dispute that at the time the appellant wee charged with these offancos he was employed as a court clerk in the Bukc:e. district court. It is equally not seriously disputed that at the material time the appellant was attacked to the

civil section of the district cot..rt. Mshwakili Tinza (p.w.i) a peasant in Bigaga village related te the lower court that on 24.6.69 he lost a civil case in a primary court and decided to lodge an appeal to the district court. According to 'iii testimony on 3.7,69 he.wcnt to the district court and saw the appellant who told him that ha had to pay shs.32/— as appeal fees. In his evidence he said he told the appellant that he had with him only shs.25/. Then the appellant is alleged to have told the witness that he could pay she.25 1 = and pay the balance of shs.7/— later. This the witness did but the appellant did not issue him with a receipt. On 10/7/69 the witness visited the court and paid the balance of shs.7/— to the accused who, according to the testimony of F.W.l, issued him with an ordinary chit written on a piece of paper as a receipt acknowledging receipt of the money. The appellant is alleged to have told F.W.i, the complainant,that he could not issue to him a proper Government receipt because, these had been exhausted; andpromiscd to issue him a proper receipt when he received more stock. On 21/7/69 the complainant approached the appellant for a proper receipt hut, according to the complainant's evidence, the appellant started avoiding him. He became suspicious and reported the appellant to the district magistrate P.W.3. The learned resident magistrate acccpt. the

complainant as a truthful witness and found that the appellant did steal the shs.32/—. He however said - .....i1hat the accused stole was two distinct sums of money belonging to P.W.l and not to the Judiciary. In my opinion the charge has been misconceived and as stealing from P.W.l is an cqully major offence I have no power of substitution of one offence for the other. In the circumstances I find the accused not guilty on the 1st count and I acquit him accordingly." The learned State Attorney who argued this case said that there was ample evidence that the appellant did steal the shs.32/— but he was acquitted. F —2.-. on a more technicality. 'a For my part I sac no reason why the appellant was completely acquitted insofar as count one is concerned* With duo respect to the learned resident magistrate I must mention that he had the power to substitute simple theft c/s 265 of the Penal Coda stealing by a person employed in the public service c/s 265 and 270 of the Penal Coo. J' magistrate has this power under section 181(2) of the Criminal Procedure Code It is under this section provided that - — " When a parson is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it." Stealing c/s 26,5 of the Fonal Coda which is a minor offence compared to stealing c/S 265 and 270 of the

Penal Coclo was fully progod against the appellant in this case. The learned magistrate should hao convicted the appellant of stealing c/s 265 of the Penal Code and sentences him accordingly. However, there is need of interfering with th irregularity at this late stage. • • Js regards counts 3 and 4 I agree with the resident Magistrate that the identification of the accused was not sufficient to warrant a conviction of personating a police officer. The evidence of P.W.2 does not show that he positively identified the appellant as the person who visited him on thatday. This being the position the charge on count four which also depends on.idontification of the accused as the person who took away the documents cannot stand. There was, as argued by the State Jttorncy, ample evidence to find the appellant guilty of forgery. The appellant himself admitted to have written receipt No.945075 on a co- file which was net entered in the court register. The receipt (No.945075) has ben s:own as a receipt issued to a party in civil case No.334/69, and that it uas issued by one, John Nbusi (P.11.5) to a totally different parson, and not to the complainant (P.w.i) as the accused wantod people to believe.. The appellant's defence that he did so by mistake was rejected by the icarnud magistrate as bogus, and I may say rightly so. The appellant inhis memorandum of appeal merely repeats what wao rejected by the trial court. • The accused was, in my view, rightly convicted of the offence of forgery. There is no merit in the appeal which is hereby dismissed. The sentence of 12 months imprisonment to a dishonest court clerk cannot be said to be excessive. Delivered in. Court on 1st October, 1970. (N A.2e~~ /1g. JUDGE.