19861112 TZHC Mtwara

IN THE HIGH COURT OF TANZANIA AT MTWARA HIGil COURT CRINlNAL APPEAL NUo5~ OF 198S Original Criminal Case No .. 96 of 1983 of the District Court o_f Songea District At songea Before P.A •. Rugazia, Esq., Resident Magistrate ISM.AILI HIRUKA ••••••••••••••••••••APPELLANT Versus THE REPUBLIC••••••••••••••••••••• RESFOHDSN'I' JUDGMENT RUBAMA, J. ISM.AILI HIRUKA was charged with and eonvicted of stealing by servant contrary to sections 270 and 265 of the Penal Code and was sentenced to seven years imprisonment. He now appeals against both conviction and sentence. The appellant was a watchman of a godown owned by the National Nilling Corporation, songea Branch.. His residential house was situated within th~ compound of the godown and he was supposed to be on duty 24 hours. One of the windows of the godown the appellant was supp<J3Ed to guard was found tampered with. , ....., From the tampered w:l.ndow saeks of maize could be taken out of the godown. on stock taking, 202 sacks of maize valued at shs. 76, 901/40 belonging to the said National Milling Corpor~~i0n songea BrQ!li:h were found missing from the said godown. As the door of the godown and all othe~ windows ••••• /2 - 2 -· had been fou~d intact it had been assumed and ~he trial magistrate found as established that the 202 maize sacks had been taken from the godown from this tampered window. The appellant v/as arrested and charged with theft of the stolen ~ci~e sacks. He had denied the allegation. ,,'ir. Kadur.i. learned Sta-ce Attorney for the Repub:i.ic declined to support the conviction. He accepted, that 202-. bags of de:::..ze had been removed I from the godown. ' He further acceptc.~d that removal of such number of bags needed time and vehicle to carry them. He however maintained that such a big exercise could not have been accomplished by a watchman alone taking the sacks from the godown through the window. He could only find the appellant guilty of negligence for failure to keep the proper watch but not of theft. I do not find merit in concluding portion of the submission of the learned state Attorney. I accept that theft of 202 bags of maize frorr1 the godown needed time and resources ioeo transport and manpower. But just because the appellant is assumed incapab~e of organising .M' ae~uiring transport and extra manpower does not make him participant in the crime he stood charged with. For the appellant was charged with having stolen these·items between 1st day of April, 1983 and 25th day of April, 1983; these dates were pegged 'on two events. Firstly 1st April, 1983 was the last time that stock taking had been done at the godown and 2~th April, 1983 was the day of the discovery of the thefto on the 1st day of April, 1983 the missing of 202 bags of maize were left in the godown properly arranged together with other stock but on the 25th day.of April, 1983 these 202 bags of uaize were found missing and the arrangement of bags in toe godown interfearcd witho It is this disorder that had drawn the attention of the National Milling corporation official that had gone to collect some maize bags that raised his suspicion and which hid led tp the stock taking on 25/4/83 leading to the discovery of a tempered win'1Pw and a loss of . ,. - 3 .-· 202 bagso This loss of 202 .bags of maize could therefore have t~(~n place in a single day in which case more .resources would have been caliea upon to accc,.;nplish the ill0gc1l C)~ercise or it could hav0 ta~en place on several days during this period of 25: dp.ys i.e. 1st April, 1983 to 25th ~pril, 1983. Whether or not the theft had taken place on a single day or on several day is peripheral: what is important is that theft had taken plaCf! and that the exit route of these stolen maize sacks had been established. The stealing could not hav~ taken place without the knowledge and participation of the appellant. He was the watchman and had his residential a·c:commodation within the compound. The exercise of stealing .whether on a single or on several days could not have failed to I eatch his attentiono Indeed his eonduc:t on the day of the discovery of the theft confirms the prosecution story that he had knowledge of this theft. whether or not the appellant was a full partner in the theft is immaterial-. The evidence clearly puts him as a participant in the theft. His conviction was proper, his appeal against conviction is dismissedo The appellant was a first offender with no previous criminal recordo As the value of the items stolen is big and the arrogance with which the theft was committed is disgusting and as the trial magistrate in imposing the sentence had correctly observed that such thefts of Public properties weaken the Parastatal sector and I add thereby weaken the economy of the . Republic, I the sentence of seven years imprisonment imposed on 'the appellannt is more than justified. The appeal against' ~entenc:e is theJ:efore dismissed. In totality therefore this appeal is dismissed in its entirityo \.._ .\ ."'\ . .~~~ -~:t&m~~:-- ~~-~ Judge 12 o 11086 \