19730105 TZHC Arusha6

R-e-~ IN TIE HIG.{T COURT OF T.AHZiNIA AT ARUSHLA MPET•L!TE JURISDICTIOH HIGH COURT CRPIII"L41 IL PEAL NO0 391 of 1972 ORIGINAL CRIMINAL CASE NO0 52 of 1972 OF THE DISTRICT COURT OP LUSHOTO DISTRICT AT LUHOTO before M.M. Semboja ----- ------- District Magistrate John s/o Mgonea ------- - - ----- Ape11ant (Original Accused) io versus The Repuh1.ic ----- ---------- ----- flea oonent (Original Pros0) ===JUDGMENT=== This is an anea1 against conintion and sentence on a 20 charge of theft by person employed in the Republic Service contrary to section 270 and 265 of the Penal Code0 The facts not in disnute are that the aojeUant was the head mechanic with Comworks at Lushoto0 He ordered four tyres of size 825 X 20 for a particular vdicle through P0W 1, the store- keeper0 When the tyres were received there were orders not to fit tem on the vthicle and they were left in the workshop yard with some old ones0 They were found missing about two months after0 30 PO4 1, who was in charge of the stores, testified that he spoke to the apellant about the misain.g tyres and he told him that he had taken them and had left the chit on which he had recorded their disposal at the office0 Hy failed to nroduce the chit and promised to get some new tyres to replace the ones in q,uestion. Soon after he :0roduced four tyres 725 X 20 and said that the 825 x 20 were out of stock0 On the 20th December, the witness showed the tyres bought to P0W 2 who was not aware of the sizes0 There was evidence that 20N 1. had spoken to the watchman, P0I 3, about the matter aiid the appellant told the latter that it had been settled0 V The case for the appellant was that he wab told that the first set of tyres had been returned to their usual alsce for storage; that he brought four tyreR from Tanga of size 72 x 20 for another vehicle; that nher he went on 1eve in December, 1971 he show the two sets to his replacement and when he returned from leave in January, 1972 he was told of the missing tyres0 50 The evidence a.aint the appe la.t was mainly that of the storekeeper in which he said that the appellant admitted taking the tyres and that he later sought to substitute others. Since this witness was in charge of the stores it seems that he could have been called upon to account for them and it would not be safe to act on this evidence only. The appellant did not directly challenge the confession but in his unsworn statement implied that it was not true. There was corroborative evidence by the production of the new tyres 725 x 20 The usual method by which the anpellant would obtainparts for a vehic1 was through 60 issue Vouchers and .so .'ff' these tyres were obtained though V he department-'a vouchercouid have been produced to show that they were requisitioned Qp - thh ' pa r ticulaP vehicle for which it had been required0 No sch evidence was produced and it will be safe to assume that the evide e;suorted the story of P0W 1. Taken in this context the appellants statement to P0W 3 that the matter had heensettled is further corroboration0 The trial magistrate -----/2 -2----- did not direct his mind on the need for corroboration but this is not fatal in that no injustice has been caused0 The evidence on the whole supports the conviction and 1 dismiss the appeal against it0 The minimum sentence for the offence is three years imprisonment0 The aDpellant as a first offender0 He will loose his job and has to pay compensation shs0 60010 1n these circumstances the sentence of five years imprisonment seems unduly hrsh0 1 will allow the appeal against sentence and reduce the term to three years imprisonment0 The order for compensation will stan0 Delivered in court et Mucha the 5th day of ianusr, 1973. sgd0 (c0L Braiib1e,) JUDG0 /Kjmathj 0 I'