19770923 TZHC Arusha

IN THE HIGH COURT OF TAN2ANIA AT ARUSHA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 63 OF 1976 ORIGINAL CRIMINAL CASE NO0 632 OF 1973

OF THE DISTRICT COURT OF ARUSHA DISTRIC AT ARUSHA to Before J.S. Nnguto (Miss) ------------------- - Resident Magistrate JAPHET SWIRE -------------------------.....----.- APPELLANT (Original Accused) versus THE REPUBLIC --------------------------------- -- RESPONDENT (Original Prosecutor)

JUDGENEN T MNZAVAS, .r. The appellant, Japhet Bwire chamganda, was convicted of uttering a false document and stealing postal matter c/ss 342 and 267 of the Penal Code and sentenced to two years imprisonment on the charge of uttering and three years on the charge of theft0 The sentences were made to run concurrently. He is appealing against both the conviction and the sentences. in support of the conviction the learned state attorney argued that there was ample evidence in support of the charge of uttering and stealing postal matter and eferred the Court to the evidence of the postal clerk (PW 10) and that of Joseph Ngowi (POW 4). In his memorundum of appeal the accused argued that the postal clerk, (PW 10), and Ngowi, (PW 4) told lies against him. In short the following were the facts that preceded the arraigmentt of the appellant. At the material time the accused was employed as a clerk in the District C.I.D office in Arusha. He also used to work as a personal secretary to the Regional Police. Commander Also at the material time one Samwel Niloi (PW 5) was an employee in the Tanzania Police Force and was attached to the S.T.P.0 at Maswa His family remained in Arusha. it was an undisputed fact that Samwel used to post money to his family in Arusha monthly for their maintenance. Apparently he used to send such monies through his friend, one Logole Sikorei (PW 6) who was at the

time working as a cleaner in Arusha police station. Towards the end of January 1.972 the domplainant sent shs. 120/- by telegraph money order to his wife Mama Sekiti (PW 7) through his friend (PW6). Apparently the money did not reach the addressee. Postal investigations were instituted and it was discovered that the telegraph money order had infact reached Arusha post office and the money delivered to one, J. Chamganda. The complainant reported the matter to the policd and investigations were set afoot. The accused was eventually arrested and charged with forgery, uttringand stealing postal matter. He was acquitted of the offence of forery but, as already mentioned above, convicted of uttering and stealing and sentenced to concurrent sentences of two and three years imprisonment respectively. With respect to the la.rned state attorney 1 agree that the evidence was clearly against the appellant. The evidence of .accuseds co-worker, one, Ngowi, (PW 4), was to the effect that soon after the accused had been charged he approached him, (PW 4), with a request that he, (PW 4), arproaches.th Regional C.I.D. Officer, (PW 1, and 4:aTc him to drop the case against the accused as he (accused) was•ready 1o refund the shs. 1201- to the complainant, (PW 5). Indeed the accused handed shs, 1201- to Ngowi to take to the Regional C.I.D. Officer. . . . . /2 -2- According to the ovdence of the

Chief Crime Officer, (PW 1) he received a telephone call on 13/6/73 from Ngowi (PW 4), who told him •tht th'accused was asking for help. The witness further told the court that, on the very, day one, Swai brought him shs. 1201- whjch he said was from, N.gowi. A postclerk, (PV 10), gave evidence to the effect that she had kqow the used' for' a long time bfore he was charged with the offences of uttering and stealing, indeed she testified to the Court th;t, arcused's wife is hperdna1 friend. According to hr evidence was: on duty at tKe postal counter on 5/2/72. On that day, according to her testimony, the accused, came to her with telegraph money order No.. 2035864and clainiedshs .;1120/- the value of the order. She told the coirt. thot as she knew him shehad no hesitation regarding his identity '"nd tatshe believed that he would hand the money to the actuci addressee, Bihi Samwei Jitoi. The postal clerk asked the accused to sign the telegraph money order at the back and his address. This apparently the appellant did in the presence of the clerk. The tele;raph money order (Exh. B) is apparently signed 3. Chamganda, Box 3011, Arusha. From the évtdence of Ngowi., (PW 4), that of the Chief Crime Officr (PW 1) and the testimony of the postal clerk, which evidance the learned resident magistrate acc ptd as trutJrful, it was crystcU cleat that it isthe accusid who collected the shs.

120/- from the post office. There was ho reson, why th aced 'should: have attempted to refund themoney if he had'nothing toLis w àLsappearenc.. Nor was there any reason why his co-workers (PW 1andPW 4) should have decided to .00k-vp a false story against him. And what is more there was no suggestion, leave alone evidence that the humbl, Postal clerk had any reason 'to tell lies so, as to cause accused's undoing On the contrary the postal clerk, (PJ 10), told the court that accused's wife w S her personal friend. The accused did not dispute this. On the evidence tendered before the lower court 1 see no valid reason to intrfere with the larned trial magistrate's finding, indeed the accused should thark his stars that he was not conv'icted of forgey as well as there was, in the opiniofl of this court, sufficient evidencc to find him guilty of forgery as charged in Count ones AS for the sentences imposed 1 cm far from being persuaded that thy are sq manifestly excessive as to call for reduction by this Court. in the event 1 ogree with the Rdpublic submissio'fl that th'is appeal should he dismi.ss:ed in: its, entirety and 1 so order. MNZL-,

JUDGE RUSHA . 23/9/77 Appellant - Absent and unrepresented Msechu for the Repubiic/Respondert. .. ... . ... NSM/KK