19710305 TZHC Mwanza

7111- A~;~ IN TI-lB HIGH COURT OP TIGTZANIA AT MTZA Appellate Jurisdiction CRITTINAL APPEALS EQs. 540 tW 1970 AiR) 518 OP 1970 (Original Ci'iminal Case No 727 of 1968 of the district court of IiUSOiaa before R. J.

1. Ruhumbika Esa., district nagistrate). JAIIES NIEJALI (DoTo) ,.AND.) ...... . . .ALAET (Oiic;-INAL ALJsi.L) STEPHEI KM)fl0 versus ) THE REIJ3LIO . . .. . . . . . . . . . .RESPONDENT (ORIGINAL PROSECTJROT) CHARGE:- lsiAccusd only:- 1 count of forgery c/s 337 of the Penal Code; and 3 counts of fraudulent false accounting contrary to section 317(a) of the Penal Code; 1st and 2nd accused jointly:- 1 count of stealing by servant c/os 265 5nd 271 of the Penal Code. JUDGI1ENT KISAITGA, AgJ. • The appellants James Kitura and. Stephen Kalendelo were charged in • one information containing five counts. In count 5 9 they weae jointly charged with stealing by servant contrary .to sections 271 and 265 of the Penal Code They were both convicted and each was centencad to two years inprisonnent with 24 strokes of copporaJ. punishment.. The first appellant Jnes was charged alone on the ranaining four counts. In count 1 9 he charged with forgery contrary to section 337 of the Penal Code and in counts 2 1 3 sax) 4 1 he was charged with fraudulent false accounting coLnJra.ry to section 317(a) of the Penal Code. He was found not guilty on count 3, but was couvicted on counts 1, 2 and 4 and was sentenced to 9 months- imprisonment on each count to run concurrently with, one another and also to run concurrently \r1jti the prison term on count . Both appellants appealed against conviction and

sentence and the appeals are eonso1idated Stated briefly, the eeoc for the prosecution was that at ±he • material time both appellants were amployee s of Taingaj i Ea Llama Co- operative-Union which is registered under the Co-operative Societica Ordinance The first appellant James was acting manager and the second appellant Stephen was Sccretary/reasurer of the Union Phone is a primary society called Suba Luo Co-operative Society which is affiliated to this Union and from time to tine the Union used to pay money to that society for purposes of buying produce such as ghee Then on 29.3.67, the officials of Suba.Luo Co-operative Society casio -to the Union and recuisitioned for money, and both appellants duly paid owe to them T.2000/- against receipt No.221 (Exhibit-C) made out by the officials of the primary society. Later on 9 however, this receipt No.221 which was ...2 kept by Upion officialswas found to have been altered and to road 20,000/-. instead of 5.2,OOQ/-. on exining the relevant payment voucher Ho.500 of the Union (Exhibit B) ,. it showpd that on the -data ip. question. the Union paid to the society N.20,000A instead of 2.2,00O/-. Purthermore, the cash book for the Union (Exhibit D) was ±ound to ccatein an entry which shpwed that on the material data the Union paid to the society :.20,000/- and not S.2 ,000/-. Again the receipt No.221 (Exi1ibiT-, on which the

appellants paid the money to the society, and whidh remained in the custody of t];ie Union, was found to be altered and to road 3.20,000- instead o' S.2,000/-. Moreover, it was apparent that the entry of .20000/- in all the three 6cuments (Ethibits B, C and D) had be en tampered with in a manner which would indicate, that thç .original figure had been 112,000/- which was altered to read 100 1 000/-4 The proscution therefore contended that the appellants in fact paid only 1.2,0004 to the society but purported to show thathey had paid 520 7 000/- and hence poe1ted the balance of 01B 4 O0041 This therefore formed the subject matter of the joint charge in the fifth count' The appellant James, who was then responsible for writing the books of account of the Union, woe alone charged with fraudulently and falsely shoyiing in the cash book (Exhibit-p) and on the payment voucher (Exhibit-B) the payment of .20,000/- which foimed the subject matter of counts 2 and 4, and.in the first cont, he was charged w i th forgery in respect of receipt No.221, (Ethibit-C) in that he fr.udulent1y attered it.to shov that W.20 9 000A was paid to the society whereas in fact only S.2,000/- was paid to the society. The appellant James in his defence on oath said that he paId S.20 9 000/- to the officials of the Suba Luo Co-operative Society a&. he denied stealing the sum of money as alleged. He also denied

the allegations of forgery and fraudulent false accountipg The appellant Stephen 9 also in a sworn statement, denied the charge of stealing and put up an alibi. He said that on 29 .3.67 he had gone on duty to Makindula and Serengeti Co-operative Societies and that he could not have been present when the Union paid the money to the society on that day. He called two witnesses in support of this alibi' The learned trial magistrate, however, rejected the defences and accordingly convicted the appellantsW In convicting the appellants on the steeling count, the learned trial magistrate accepted and relied on the evidence of P.Vi.W. 4 and 6., These were respectively, the treasurer and secretary of Suba Luo Co-operative Society at the .material time and both testified that on 29.3.67 they received only E0,000/- from both appellants; I _AAA . . .3 Mr. Tukunjcba for the appellant Joe and Mr. Rugaraba:u for the appellant Stephen argued the appeal on two nain grounds: The first- ground was that the evidence of P.W. 6 which was relied on by the court ought to - have been treated with great caution before it was accepted Pnd acted upon. As mentioned earli, P.7.6 was secretary of the Suba Luo Co-oporaiive Society and one of his duties was to requisition for and collect money fra' the Union on bohlf of his society. There was ample evidence that in Septaaber 1967 ho Was charged jointly with

both appellants for steeling S0145 9 382/20 9 the property of the Suba Luo Co-operative Society and it is apparent from, the evidence of P.W.3 that this sun of 2.145,382/20 included. the .18 9 000/- which is the subject matter of the present charre Later 01') the charge against both appellants was dropped and eventually the iitncss was acquitted on it' Counsel for both appellants, therefore, submitted that this witness could have a good reason to tell lies in order to shift the blame on to the appellants and save his own skin The learned trial magistrate, in accepting the evidence of this witness, said that he saw no reason for disbelieving hila lo With respect, I would agree with the learned counsel for the appellants that the witness had an interest ci' hi own to serve in the matter so that his evidence ought to have been.scroti- niseci carefully before it w a s acted upon" Throughout his juciguclat, the learned trial magistrate has not scrutiniseci the evidence of this vrithc-ss and his failuo to do so was a nisdirection The position could have been raaedied if 'thero was some independent evidence -to support the evidence of this witness'; The only other evidence on this point is that of 2.7. 4, the treasurer of uba Luo Co-operative Society who said that he and P.'.6 received 6.2 9 000/- only from the appellants; To lay mind, this witnoc cannot he regarded as-an independent

witness whose evidence could adocuabely support that of P.7.6 Por, he and P.W.6 jointly received the money from. the appellants, but since the exact pnount paid to thou is now in dispute, it would be in his interest to say that he received a lesser amount in order to avoid liability of having to account for the larger sun as alleged by the appellant s The second ground argued was that the charge was not povecl beyond reasonable doubt because the books of account for Suba-Luo Qo-operativo Society wcrovidence of P.7.4 and P.7.6 that only S 0 2,000/- and not .20 1 00O/_ had been received by the society. The most relevant of those books would be the cash book showing the amount of money received by the society from the Union, and the duplicate, of receipt No.221 (Ethibit a) on which it is alleged that only .2 9 000/- was paid to the socictyo The learned trial hagistrato, in his judaent, held that failure to produce those books vms not material becau. there was other evidence which was sufficient to sustain the conviction'; With groat respect, I think this :-., . . .4 view was Virong because it is possible for the cash book 9f the society to contain on entry reflecting the cllegecl n of .2O,OOO/- as having boon received by the society on the date in auestion, in which case the case agains± tlio appellants would collapse The position was slightly different as regards the duplicate

of, receipt No. 221 on which P.W7. 4 -,nd 6 sa that they-received ,2 9 000/- only. P.k.3 9 the Co-operative Inspector,, said that on 6.9067 9 he inspected the books of account for the Suba Luo Co- operative Society. In the course of doing so, he djscovc-red the tup1icae receipt No.221 which had been altered from .2,000/- to .2O,OOO/- and. that in his opinion the alteration was in the dviriting of the appellant J:aios P.W.6 tried to connect the e.ppoflant Jemes with the said alterations by saying th&t sometimes in Juno 1967 James called for the society t s books of account for purposes of chocking them, thus- sng acting that Jenes had the opportunity of making tile alterations then. P.7.6 was the only v.itnoss who gave evidence on this point The appellant Jonas, of course s denied to have called for the society? s books of accounts as alleged, and for reasons given elsewhere in this judient, the word of P.7. 6 alone as against that of the appellant Jones was insufficient to prove that the appellant Jamc did call for the said books of account and Therefore had the opportunity of making the said alterations in then. On this point also the learned magis- trate appeared to have relied on the evidence of P.7.3 vkio, as indicated. earlier, was of the opinion that the alterations on duplicate receipt ITo. 221 were in the handwriting of the appellant Jones I think this was not propo±'.

If the said duplicate receipt No.221 was produced, then the 1eaxed uaristre.te would have been entitled to act on the opinion evidence of P.7.3 as to the handwriting of the appellant James because in thoso circumstances, the trial magistrate would himself have the opportunity of foining his own opinion about the handwriting appearing on the said duplicate receipt by comparing it with other acinitted writings of the appellant Jenoc In the absence of the said duplicate receipt, however I on of th view that the loomed magistrate was not entitled to act on the opinion evidonce of P.7.3 that the handwriting on the document which was not produced vcs that of the appellant Jones, for the simple reason that if the said duplicate receipts were produced, the court might very well forn the opinion that the -handwriting appearing on It was not that of the appellant James as elleged Perhaps one further point nay be mentioned There is no evidence to shpw that there was any physical counting of the money of the Suba IjO - Co-operative Society ot any stage OurirC the investigation into this caso. It would seem to me that in order to establish the case against the appcllamt beyond reasonable doubt, it would be necessary to show that, the money alleged to be stolen was not in the sofa of the Suba Luo Co-operative 1 . . .5 Society. The evidence which is based entirely on book keeping can

be niisleadin: beceuse the books uight not reflect the true position of noney in the sufe The learned advocate for the Iepublic did not seek to support the conviction on the stealing count and for reasons as indicated above, I ara of the vjew that the evidence adduced was most insufficient to sustain tho conviction' Once the charge on that count fails, then the rest of the ccunts which are necessarily connected viith it nust also fail. In the result, the appeals of both appellants are allowed in their entirety 0 Their convictions and sentences are set asido•id theappellarits arc to be released unless otherwise lav'ully held in custody lo- Delivered in Court at Mwanza on 5th March, 1971 O. H. Kisaria) Ag 0 Jt]TDGE 2