19770813 TZHC Mwanza 1

IN THH HIGH COURT OF TANZANIA AT HPANZA . . .• ..

APPELLATE JURISDICTION HIGH C0UT .CRIhINAL APPEAL N0. 132 oF 1977 (Original .CririnaJ. Case No, 247 of 1976 of the district court of eoperema District at Sen gerema - 2efore E. Kisanji, Esq., Sepior hagistrate)

IDDKHALFN APPELLANT versus THE REPUBLIC 0000000000,.o, RPONDONT CHARGE: Stealing by public Servant c/s 270 and 265 of the Penal Code Cap0 16 of the Laws0 JUDGI"IENT: KATITI, J.: The appellant IDI) KHALFAN, found himself convicted of the offence, of stealing by public servant c/s 270 and 265 of the Penal Code Cap.

16. He was sentenced to three years imprisonment, and ordered to compensate the Government shs. 250/=, the value of the stamps stolen. He is appealing against conviction, contending that the stamps indeed got lost, and that ha reported the loss immediately, ever promising to make the loss, good 0 He adds, that this can not he theft. The Republic represented by Mr. Pinda, the learned State Attorney, was equally of the view, that theft by servant was not rasily readable on the evidence avoilable. The apoellant was a Nursery Attendant, in the Fisheries Department At Senqererna. On 24/8/76 when the appellant, who was then on leave, was about to go to Mwanza, on errands of his own, PW.l Charles Hasuoga gave the appellant, a cheque for sum of shillings 250/=, so that the appellant buy office stamps at Pivanza, with a letter of introduction to Post Master Mwariza Ref. No 0 36/6/04/58 of 28/7/76 Exh 0 C. The apuellant went back, to Sengerema on 28/8/76, with a report that the said stamps had either got lost, or stolen at Busisi, while boarding a bus. He offered to refund the same. The aooellaat in his sworn statement, maintained a denieal that he was ever given any cheque at all for stamps 0 He was convicted as charged, and sentenced to three years imprisonment. Apart from part of his memo, whose texture I have given,the appellant says that in fact, he gave the sworn defence he gave to

try to save his skin as matters had gone beyond correction to him, the real fact being that stamps were lost or stolen0 The evidence clarly shows that the aenellant was entrusted with a 250/='s chque for stamps. Further the -videaca shows that the stamps were actually bought, and that the appellant reported loss of the same, back to Sanqerema is confirmed by PW.l and PW,2. That the appellant promised to make the loss good, is also unequivocally confirmed. The question is whether the appellant stole at all, the same0 The con\ricting court, convicted the appellant, by inflating the importance of the anpellants subequent denial, of knowledge of the cheque in question, But, I tend to view the whole case as does Mr. Pinda. Thc appellant a Gursery Assistant, is one of the unspphisticated specie of men amongst us 0 It may well be, he thought by denying he was saving himself. Further considering the appellants' prompt reporting of loss, without mincing or equivocation, and his offer to make the loss good border a real probability, that he may have lost the same. I think this is a case, that one cannot be sure about the criminal mind, of the apoellant, if any. It does not. appear proof of quit, re. chad the certainty required in a criminal trial. I am therefore agreement, with the leered State Counsel, I allow - 2 •- this appeal, quash th conviction, and set aside the sentonce and any other order related to or accompanying the same0 The aDpellant to be set free unless otherwise legally held 0 Delivered, this 13th day of August, 1977 • • • ' E0 U. KTITI, JUDGE . HICJ COURT IIUANZAO ,,