19760126 TZHC Arusha1

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IN THE HIGH COURT OP TANZANIA AT J.USHA C- ' CU • APPELL1.TE JURISDICTION 2 1 • HIGH COURT CRIMINAL- APPEAL NO. 321 OF 1974 C/CRIIvIINAL APPEAL NO. 322 OF 1974 ORIGINAL CRIMINAL CASE NO • 68 OF 1974

OF THE DISTRICT COURT OF HANDENI DISTRICT AT HANDENI BEFORE: A. B. LUGENDO, Esq. District TIagistrate JOHN MTU1-UJA ...... APPELLANT (Original Accused) - versus THEREPUBLIC .....,.......... ..o....... RESPONDENT • (Original prosecutor) Timcnp;nPNP NYALALI AG . The two appellants, namely John Mtunguja, hereinafter called the First Appel1ant and Raphael Kijazi, hereinafter called the Second Appellant, were jointly charged and convicted with a third person in the district court of Handeni District at Handeni with the offence of Stealing by Servant c/ss 270 and 265 of the Penal Code and were each sentehced to the statutory minimum of 3 years imprisonment and ordered to pay the statutory compensation under the Minimum Selatences Act, 1972. They are now appealing to this Court against the conviction, sentence and order. The first point Ihave to consider in this case is whether the appellants were properly charged and convicted.. There is no dispute in the. case that the appellants were employees of the Comi works dlvi sion of the government and the property alle;edly stolen h them was government property. It follows therefore that the proper charge should have been Stealing by public servant c/ss 265 and 270 of the Penal Code. Since the ch.r.e cb:èrectly cites the section which creates the offence for which the appollants should have been charged, at first I tiaought that the

irregularity in tne charge was ctue only to a clerical error by ornmitting the word "public" before the word "servant" in the charge. But an examination of the particulars of offence discloses that the charge makes no reference to the accused as being persons employed in the public service. So irndoubteclly, there was no clerical error, and no intention to charge the accused win the ofience of Stealing by puolic servant c/ss 265 and 270 of the Penal Code. The intention was to charge then with the offence of Stealing by servants c/s 265 and 271 of the Penal Code. The intention was of course misdirected but there it was. So. ..,... ./2 -2-- So the offence for which the appellants were charged and convicted was that of Stealing by servants. The charge quoted the wrong sections - that is sections 265 and 270, but this irregularty is curbble by this court under S. 346 of the Criminal Procedure Code, and I will do so if there is evidence to support the conviction. The facts of the case according to the prosecution are that on the 11th March 1974, the First 413pellant, who was employed by the government as a ton-boy/plant attendant, and the Second Appellant, employed by the G-overnnent as a mechanic, together with the third person who is not appealing and who was employed by the government as a garage attendant, were -together at a conmworks yard at 1-lancleni during the working day.

The second Appellant and the third person were assigned to work on a repair of a motor lorry registration No. TZ 8465 belonging to the government at Handeni 'Bona'. The repair work was being done near a fuel store and there were eight drums full of diesel oil outside the fuel store. P.W.2 was then on duty as a watchman at the gate into the yard. When the motor lorry was ready to be driven out of the yard for road testing, P.W.2 saw the First Appellant roll away one diosel oil drum lorry. Updn inquiries, the Second Appellant told ?. 77.2, that the drum belonged to the lorry which he had been repairing.. Assisted by the third person, the First and Second apoellants loaded the drum into the lorry by Using7 a plank. The lorry,' carr,ying the drum, was then driven out of the yard by the- Second Appellant, accompanied by the First Appellant and the third person, apparently for road t- osting-. Vihon the lorry came back later that day driven by the Second Appellant, PV.2 noticed that it was no longer carrying the dru 0 in question. The following day, when P.1,1,3 took over frona P.W.2 as a watchman, he discovered -that there were only. seven drums outside the fuel store instead of oight On ini'ornation given by P.W.2 concerning the drnm loaded on the lorry the previous day, P.71.3 interrogated the Firet Appellant who admitted being res -oonsjijle for the loas of the missing drum. The

matter was thkcn before P.71.4 (who was officer-in-charge of Connworks at Handoni) and the First Appellant, admitted in writing in the presence of PVi.2 9 1"I.W.3 and P.71.4 and members of the workers coi'imitteo, of being responsible for the loss of the missing: drum and agreed to make good the loss by two mon'thly deductions. The matter was then reported to the police with the result that the First Appellant, and subsequently the Second Anpellan and the third person were apprehended and charged. The defence case of the First Appellant at the trial is an alibi asserting that at the ti.ue when the dru:i in question is said to have disappeared from the yard, he was not on duty but was sick and had a sick sheet medically excusing him from working for two days. The .................... ,/3 -3- The defence of the Second appellant isa denial of taking or knowing any drum being taken outside the yard in the lorry he had been repairing. The first point for consideration is whether the Fiz'st Appellant was present and assisted in the loading of a diesel oil drum into the lorry in the yard on the m.aterial day. , The First Appellant produced a document as exhibit DA. which he claims to be a sickshect excusing hiii from duty on the material day. The trial district agistrate held that the entry appearing on the 11/3/74 - the date material to this case was a forgery. The First Appellant

complains about this finding of fact by the trial district magistrate. I have exami.nod the document in question and it shows a record of attendancos and visits to the hospital between 26th December 1973 and 11th March 1974. The first entry on 26/12/73 reads "E.D, x 1 day". This presumably means "cuse Duty for 1 day".. The second entry reads "do=". This presumably is abbreviation for "ditto, meaning the same as above. The next entry on 1 March 1974 reads, "attended 0 .P B." presumably meanilg "Attended Outs ideADepartment". The following entries for 5/3/74 and 6/3/74 read 11 do meaning "ditto" as I have already explained. The crucial entry for 11/3/74 is ektensively and obviously altered, .but it can still be seen that there was an entry reading "do" before the alterations were made. This means originally the patient concerned had attended outside deartnient as he had done previously. The alterations ho'iever indicate that the patient was granted "E.D."for two days. Now, as correctly pointed, out by the learned trial• district magistrate, the let Appellant could not be cross- examined, about the alterations since he elected to give an unaworn statement in his defence • In his petition of appeal, First Appellant submits that the prosecution should have called witnesses to rebut the sicksheet. This submission is ridiculous since the First Appellant did not indicate in

his cross-examination of witnesses for theprosecution, especially P.W04 (the Officer-in-charge) Cornmworks, that he had a sick sheet which he was going to produce, and so the prosecution could not be expected to have known that there was such an entry in a sick sheet. Under those circumstances, the trial magistrate was quite right in finding that the entry for 11/3/74 purporting to show th.t First Appellant was not on duty is a forgery.. The trial court accepted the evidence of P.W.2 to the effect that the First Appellant was nresent in the yard on. the 11/3/74 and helped in loading a drum into the lorry. I thinc the trial court was justified in accepting that evidence, since I can see no reason for not cceptin that evidence. The next point I have to consider concerning the First Appellant is whether he wrote exhibit P.A. adni'bting responsibility for the loss of the drum and agreeing to make good the loss. P • W • 2 , . . . • . . . . C • /4 P. 111.2 7 P.W.3 and P,111.4 claim to be .eye-witne?se to the writir.g by.. the lst, Appellant. Although no noxni3er of the works oonmittee. was. cal1ed to testify, 'I thinc the evidence of P.W.2, P.W.3 and P.704 I accepued. was sufficient to show that the Pirst Appellant had written the documeiric in question. I can coo no reàon for thb trII bourt not accepting tha evi4dnp s. of these WitnesseS.. So, the áppellant must have written oxhibit

P. "A". The other point "I have to consider is whether the Second ApplIant hp1p4 in loading a drum into the lorry which he su'dcueritly drove away. The evidence of P.W.2 is the only avidenco.iiiking.-the second appellant with the offence. Ifacoeptedit was by the trial court, thei it leads inevitably t& the conclusion that he helped in loading the drum into the lorry which he subsequently drove, awar from the yard.. I an unable to. find any reason for not . acc.ç.pting the evidence of P.W.2.• The next point I hav• to consider is whether the drum which the appellnts. loaded into the lorry was the same. drum which Wfts found miseing outside the fuel store. The oVidence of P.W..2, P.W.3 and P.W.4 shows that there had been eight drums of diesel oil outside the.fei.toro on the 11/3/74 and that the followina day orl,. 1 scvén drums remained. The evidence of P. 111.2 also shows that the lorry which carried away a drum on the 11/3/74 had been undergoing repairs near the fuel store. The second apodllant called a witness - that is D.71,4 (the usual driver of the lorry) to estifx that when the Second Appellant took the lorr' for rairs it had, among other accessories, a drum containing 2-- gallons of diesel oil and that when the lorry was returned after repairs, it still had all the accessories ircluding the drum of 2 gallons of diesel oil. Now, could this drum mentioned by D.W.4 be the

drum which POW.2 saw tho appellants loading into the lorry at the material time? The Second aprollant in his defence denied ever o arrying or knewing any drum being carried in the lorry at the material tine. It follows therefore that the drum of 2- gallons of diesel oil mentioned by D. 1,7.4 could not be the same as that which P.W.2 saw the appellants loading into the lorry, otherwise the Second Appellant would have given a defence which agreed with the evidence of his witness. There was therefore overwhelming evidence to support a conviction for the offence of Stealing by orvant .c/s 265 and 271 of the Penal Code and I will and now cure the defect in the charge by entering a conviction for that offence. Si nce. . ... .......- U:. Since the appellants must have known that the property belonged to the government when they stole lt, they are still caught bytheMinimun Se.itences Act and so the sentence of 3 years imp'isonierb and the order of coiiaponsa1on cannot be disturbed. The appeal it théefore dismissed. - • - I I' (F. I. -YALALI),. AG-. JUDG-E.. Judgement delivered in oponCourt this 26/1/1976 at Arusha in the presence of Mr. Mwipopo, State Attorney. 7 // - ( 2 • - (F. •L. )YALI) • FLN/MTPii. AC-. 511DG-E•: • -.