19760126 TZHC Arusha

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IN THE HIGH COURT CF TANZANIA AT ARUSHJt

APPELLLTE JURISDICTION • HIGH COURT CRIMIN1l1 APPEAL. NO. 321 OF 1974 a/p CRIMINAL APPEAL NO. 32.2 OF 1974 ORIGINAL CRIMINAL CASE NO, 68 OF 1974 OF THE DISTRICT COURT OF HPd\TDENI DISTRICT AT HANDENI BFORE A. B. LUGEITDO, Esq. District Magistrate JOHN MTURGUJA ................." APPELLANT (Original Accused) versus THEREPUBLIC ........................... RESPONDENT (Original prosecutor)

JUDGEMENT NYALALI, AG. J. The two appellants, namely John Mti.mguja, hereinafter called the First Appellant, 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 sentenced to the statutory mini.nm of 3 years imprisonment and ordered to pay the statutory compensation under the Minimun Sentences Act, 1972— They are now appealing to this Court against the conviction, sentence and order. The first point I have to consider in this case is whether the appellants were properly charged and convicted.. There is no disputo in the case that the appellants were employees of the Commwoi'ks division of the governent and the property allegedly stolen by then was government • property. It follows therefore that the proper charge should have been Stealing by public servant c/se 265 and 270 of the Penal Code. Since the ch.rge correctly cites the section which creates the offence for which the appcllants should have been charged, at first I thought that the irregularity in the charge was due. onig to a clerical error by ommittin.g the word "public" before the word "servant" in the charg . e. But an examiition of the particulars of offence discloses that the charge makes no reference o the

accused as being persons employed in the public service. So undoubtedly, there was no clerical error, and no intention to charge the accused with the offence of Stealing by public servant c/es 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, - - - .. ..-. _. .41 -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 i sections 265 and 270, but this irregularity is curable 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 Lppellant, who was employed by the government as a ton-boy/plant attendant, and the Second Appellant, employed by the Government 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 comiiworks. yard at Handeni during the working day. The becond Apipellant and the third person were assigned to work on a repair of a motor lorry registratioia No. TZ 8465 belonging to the government at Handeni 'Boma'. The repair work was being done near a fuel store and there were

eight drums full of diesel oil outside the fuel store. 2.7.2 was than on duty as a watchman at the gate into the yard. Then the motor lorry was ready to be driven out of the- yard. for road testing, 2.7.2 saw the First Appellant roll away o n e, diesel oil drum lorry. Upon inquiries, the Second Appellant told. P.7.2, that the drum belonged to the lorry which he had been repairing. Assisted by the third person, the First and Second appellants loaded the drum into the lorry by using a planic. The lorry, carrying the drum, was then driven out of the yard by th Second Appellant, accompanied by ino First mppollant and the third person, apparenily for road testing. dhon tue lorry came back later that day driven by the SocondAppellant, 2.7.2 noticed that it was no longer carrying tho drui in question. The following day, when 2.7,3 took over from 2.7.2 as a watch!aian, he discovered that there were only seven druias outside the fuel store instead of eight. On information given by P.V12 concerning the drum loaded on the lorry the previous day, 2.7.3 interrogated th First Appellant who admitted being resnonsible for the loss of the missing drum. The mat -bar was taken before P .'J .4 (who was otfic er-in-charge of Commworks at Handeni) and the First Appellant, admitted in writing in the prosoncu of 2.7.2, ?.W.3 and P.7.4 and members of the workers committee, of being responsible for the

lose of the missing' d.ruh and agreed to make good the loss by two monthly deductions. The matter was then reported to 'thc' police with the result that the First ,Apellant, and subsequently the Second Appellant and bh third person were apprehended and charged. CD The defence case of the First Appellant at the trial is an alibi asserting that at th o tine wen h the drum 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 . . . . . . . . . . . . . . . ... . . . - 3.- The defence of the Second appellant is a 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 First Appellant was present and assisted in the loading of a diesol oil drum into the lorry in the yard on the material day. The First Apellaht produced a document as exhibit DA. which ho claims to be a sicksheet excusing: him from duty on the material day. The trial district magistrate held that the entry appearing on the 11/3/74 - the date material to this case was a forgery. Tho First Appellant complains about this finding of fact by the trial district magistrate. I have examiod the document in question and it shows a record of attendances 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 "ccuse 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. O.P.D." presumably meaniiig "Attended OutsideDepartment". The following entries for 5/3/74 and 6/3/74 read "do" meaning "ditto" as I have already explained, The crucial entry for 11/3/74 is extensively 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 department as he had done previously. The alterations ho\7over 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 umsworn 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 the ~ rosecution, especially P.W.4 (the Officer-in--charge Corniworks, 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 shcet. Under those circumstances, the trial magistrate was quite r1g.ia in inaing that the entry for 1173/74 purporting to show that First Appellant was not on duty is a forg'er. The trial court accepted the evidence of P31,2 to the effect that the First Appellant was iresent in the yard on the 11/3/74 and helped in loading a drum into the lorry. I think the trial court was justified in accepting that evidence,. since I can see no reason for not accepting that evidence. The next point I have to consider concerning the First Appellant is whether he wrote exhibit P.A. admitting responsibility for the loss of the drum and agreeing to make good the loss. P .V.2, . . • • • 0• *0 - 3. -- - - 4 -t -4- P.W.2, P.W.3 and P.W.4 claim to be eye-witnesses to the writing by the 1st AppelLant.. Although. no nonber of the workers con t'ee was called to testify, I t1- inkthe evidence of P.W.2 9 P.W03 and P.W04- ,..if accepted Vias sufficient to, show that the First Appe1aat, had written the document in question. I can sea no reasonfbr the'tri.al court not accepting the evidence of those witnesses. So, th€ apollant 00 0 must have vitten exhibit -P."A". The other point I hae to consider is whether the Second Appellant h-,l-pcd ,.ih loading a drum into the lorry which he subscuently drove away. The evidence of PW.2 is the only evidence limking the, second appellant with

the offence. If acc.ept.Od as i was by the trial court, then it leads inevitably to thë conclusion that he helped in loading the drum into the lorry which he subsequently drove away frof the--yard. I :unabl to find any reason for not 0 accepting the evidence f -P.W.2. The next point I - have. to consider is whothr the drum which the appellants loadbd into the lorry was the sane drum which was fc.iind mising outside the fuel store. The cvidöne of P.W.2 9 '.P.W.3 and PØW.4 shows that there had been eight dris of diosel oil outside the fuel store on the 11/3/74 and thOb the following day onl' scven ..drums remained. The evidence of P. 1 1.2 also shows tht the lorry ,1 which carried away a drum on the 11/3/74 had boon andergoing repairs near the fuel store. The second apoc:.lant called a witness - that is D.1.4 (the usual driver of the lorry) to tesbif; that when the Second Appellant took the lorr' for reairs 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 including the drum of 2- gallons of diesel oil. Now, could this drum mentioned by D,W.4 be the drum which POW.2 saw -the appellants loading into the lorry at the material time? The Second appellant in his defence denied ever carring or knowing any drum being carried in the lorry at the material tine-. It follows

therefore that the drum of 2 gallons of diesel oil nentioned by D.W.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 0 witness. There was therefore ovorvihelming: evidence to support a conviction for the offence of Stealing by servant 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. Since . . . . . . . . . . . a ... 4. - 5. - Siibe the ajpellants must have knmpm that the property belOnged to the gover±imnt when they stole it, they are still caught by. the Mi1ümun Sentences Act and so the sentence of 3 years imprisonnent. and the order of compenCatiOJ. cannot be disturbed.. The appoal is 0hereforc disnissed. i) (F. L...-YAIALI) AG. JUDGE. .. . Judgement deliverd in open Court this 26/1/1976 at Arusha in the prcse1.ce of Mr. Mwipopo, State Attorney. T (.P L)YALALI) FLN/MTPLI. . . AG. JUDGE. . .