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IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPOAL No0 347 OF 1977 ORIGINAL CRIMINAL CASE NO. 845 OF 1975 OF THE DISTRICT COURT OF MNANZA DISTRICT AT MUANZA Before B. B. OSIR, Esg. DISTRICT MAGISTRATE JANUARYPAULOiKI1 %rOO.0000,00000,.00000000000000000000000 0APpELLANT 0 (Original Accused) versus THE REPUBLIC. , 0 0 0 0 0 . . RESPONDENT (Original Prosecutor) CHARGE: dTEJtLING BY A PERSON EMPLOYED IN PUBLIC SERVICE c/ss 265 and 270 of the Penal Code Cap 16 of the Laws. -OoO- J U D G H E N T KATITI, J. One January Paulo Kikoso, the annellant in this case, the first of the four accused persons, found himself convicted as charged - steal- •ing by public servant C/s 265 and 270 of the Penal Code, and sentenced to five years imprisonment, by Mwanza District Court. He was also ordered to refund shs0 15.115/=, found stolen by him, to the Government. As is usually the case, he has appealed against conviction, and such other orders connected therewith0 The 2nd, 3rd and 4th accuseds, were acquitted. Lightning like, on 29/7/1975, the Hwanza Government Regional Internal Auditor, Bernard Rwegasira, descended upon, the appellant's office - Mwanza District Natural Resources Office, for Inspection of accounts. The appellant, who was the District Fisheries officer in charge of District, with accuseds No, 2, No, 3 and No, 4 working under him, did on demand, surrender the following licence books - 07101 - 07150 29501 - 29550, 13,601 - 13650, 13751 - 13,800, 2150 - 21550, 26,850 - 26,900, 13651 - 13700, 13701 - 13,750, General Revenue Receipts - 849001- 849200, D 848801 - 0 84900, Exchequer Receipts Vouchers No. 406401 - 406600, Revenue Collectors Book No, D. 068401 - D 068550, and such other relevant documentary accessories. Subsequent ransacking of the office, that on the evidence appears to have been shabbily maintained, revealed the following licence hooks m- Nos. 28451 - 20,500 1 11601 - 11650, 21545 - 21,500, and 29601 - 29650 that were surrendered by the aepellant on 7/8/1975 to PW1 for inspection. The inspection by P01, which demonstrates more of disproportionate enthusiasm, at a devastating expense of thoroughness, came up with a report, that the amount found stolen, was shs, 15,115/=, and stolen by the appellant, and hence the charge and the conviction, that the appellant is vigorously fighting against. The appellant contends:- That P01 did not satisfy the Court, that the Licence Receipts, he depended on for his accounts, were used or issued by him, in view of the fact, that other accuseds were using the same Licence books, That, had P01 examined payment vouchers, he would have noted that some money was spent cu Government projects. 0 00 .12 -2- (c) That PW1s accounts, do not necessarily add up to the figure of 15,115/=. The Republic, represented by the learned State Attorney Fir, weciiungura, submitted that the case as a whole, was such a jumbled up, confused assemblage of facts, as though with no direction in mind, that supporting conviction in the circumstances, would amount to an abuse of justice. As the case, tasted no analysis at the hands of the trial Court, reviewing the evidence is necessary0 The appellant was working with accuseds, No.2, 3 and 4, in the District Office for Natural Resources flwariza. Their duti.s, included issuing of different licences, for which they received fees, which the other three, were supposed to hand over to the appellant, who would bank the money, as required0 These Licence books, were being collected from the Regional Fisheries Office Mwanza, where whoever collected the same, had to sign related issue vouchers. It stands out, as clear as a sunny day, that the auditor, did not inspect all the Licence hooks, or all the accounts books, s he himself found, that some books could not be traced though received, and that, even some that could be found, had receipts or copies thereof missing, or torn, and as P'7 B. 4702 O/Sgt. inatoli, who visited the office observed, some hooks, and files were scattered on the floor. This can only mean, that the office, had been in the hands of a very incompetent and reckless person. And since it stands out clearly, that some books, or receipts were missing, we must C bd pushed into a position, where we have to be guardedly cautious, about PW1's figures, and final findings. I have above shown, the Licence books that the appellant surrendered to PW1, for Inspection, again, these could not have been spared from having receipts missing or torn. It is from the same, that PW1 extracted the amount, that the Republic maintained in the lower Court, that the appellant stole. Nowhere, has it been testified, that the appellant, personally collected the said books, from the Regional Fisheries Office, for his own use in the office, and in fact nobody knows who did, and who was keeping them, and as such, the sa.d books stood accessible, even to other accused persons, if not to all and sundry, so that it was a must, that the identification of the handwriting on the receipts, to be that of the appellant, should have been undertaken. But in ascertaining, whether or not, it was the appellant who received the amounts reflected by the books that P'Al inspected, the prosecution, relied on the evidence by PW1, who testified as follows: "I took for granted that all sijnatures bearing your last name "Kikoso" to beyrs and not forqed when inspecting0 ,-, the accounts b". Indeed he must have taken things for granted, as he (PWI) inspected the relevant books alone. But in criminal prosecutions, we do not take things for granted, although surprisingly, the prosecution . was in this case satisfied with this sort o thing. The conclusion, that since the appellant's name "Kikoso" appeared on the receipts, therefore the appellant, must have been the author of the same, and, therefore received the amount related to the same, suffers critically, from over- simplicatiori, so that swallowing it, in the mass as it is, as establishing the identity of the appellant's handwriting on them, would render us accused, of being incompetent trustees, of the principles of law, rcciarcl- ing identification of handwriting, that must he applied in this case. Section 69 of the Evidence Act 1967 provides as follows:- "If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting, must he proved to be in his handwriting." The obvious principle here, being that whoever makes an allegation, must prove it, and reading Sections 69 and 2(a) of the Evidence Act 1967 together, unless statutorily otherwise provided, a fact is said, to be proved, in criminal proceedings, if the Court believes it to exist, beyond reasonable doubt. Therefore, what the prosecution was required to do 1 was to make the Court believe, that the receipts Were written and issued by the apeellant, yee: re:sohe doubt. Arid depending on the evidence .0/3