19771222 TZHC Arusha1

, HI IN TH1 I'1IG' CCUT OF TANZANIA AT .ARU3i-L4 APLT. 9 JURIDITION HIGH COURT CRININAI L'NO,161 OF 1976 (Original Criminal case No. 50 of 1975 of the District Court of Hanarg District at Babati.) . . BEFORE. J. N. NIMICAZA Esq., District P1a gi t ra i e JOSEPHQUAYMOJAW(2ndaccused),...............o., AFTTLLMT versus THE REPUBLIC .•. RPONDENP JUDGUJLIP 1 • MNZAVAS,J. - In this case the ap'- p-ellant Joseph Jawi,. and another person who has not appealed were joiiitly... . charged with two counts of stealing by person.rnployed in public service c/ss 265 and 270 of the Pencl..o:d:e.and,. on being convicted he was sentenced to five years çimpr.isonment on the first count and three years inrir.onment on the second count. The sent.rces were made to run.cumUltive'iy' making a total of 'eight years' imprisonment. The appellant. is appeling aciainst both 'the,. eonvictons".t4Le sentences, . . . . . ... . In his memoranduim of appeal to this.,court, the. ap.e1lant argues that he was a'nere committee meneTThf •Kateshi ... - Co-opei'at-ive Socè€yand that he did not: handle cash.,:. He also says'that he ws'not the oneho kept the•keyto the.,. store in Which produce was keDt' The appellant a' co says in his memorandum of appeal thof the senteñbes ifl1p.psed are,,. manifestly excessive. In support of the convictions the iened-tte'•Attorney argued that there was suf:icierit evidenceconrecti-ng

the accused with the offences of sten1in. and referred the court to the evidence of JamOs, (TW025,and thst. :pf Emmanuel, (w.ii), the secretary0 There was no ispute., in this case that the first aecved.who 'has no tz appealed, was the branct secretary of Katcsh Co-oper'itive ocicty at the material time. The aopel1it was a con'rnittee rnen'ber and, as the evidence amply do' -mon-strated, th right hand an of the first accused in the running of the Co-operativeociety0 The two were the ones who used to receive pro;duce,,.fxom ' farmers and they' were'the ones who used to pay ,the. farers. for their produce. When the books of, account were checked it was fouid that there 'was p, s'h r'tag•e of produce, mainly wheat and beans as' well a's shortage of cash. T.here.was,. as rightly found bythe le'rnd trial magistrate a shortage.. of 10'800 Kgns df'produce worth about Shs,73,825,89, As :bo;th accused kept the keys to 'the store they were •irect1y. responsible for the shortage. There was fulminating evidence in support of the charges. To mention but a few examples there was evidence that the accused used to sell wheat añd dther'.roduce to private individuals in Mbulu,nd 1so used to transport beais tend. sold them in Singida. .he.proceeds from such irreguIa±'ie's were not creditted to th""account's of the society. ThL., being the position the only reasonable presumption is that the

accused pocketed the money. ../2 And what is - -2- And what is more tcre was und isputef evidence that both accused approached the chairman of the co-operative society (pwi) and.the secretary,"(PWoIl)., a nd offered to them money as a bribe so that theiT withdro.w'the case.. from police hands0 Such conduct was cleer1y,inc9ns,steflt with Innocence0 ' I, with respect agree with the learned State Attorney's submission that there was ample evidence connecting both - accused with the o.fffences charged0 On the evidence it is no wonder that the branch-secretary. of :hc society (1st accused), decided not to appeal against the coflvictlon0 As for the sentënes of 5 years and 3 years impriso nent which, Were made to run consecutively, the Thearneã atate AttoPney decided to leave the question to the courts Afrightlk commented by the learned trial magi:trate. the accused abused the responsibility entrusted to them by' their fellow villagers, the humla'le peasants0 The amol3nt of produce dtolenisworth thousands of shillings. This.being the positi'on'.a condign sentenc wa indicated 0 The first accused was 'extreme1 lucky that his age removed him from the'J ambit of the 'miflimum' sentences Act, 1972 However the order that the sentences of 3 and 5 years imprisonment imposed on the appellant, (2nd accused)', sho"ld run coneecutive1y was bad in lawn From the e1dence thefe could he no doubt that

the offences were committed out of the some tr,rw:actiona1beit on different OCCS,SjOflSo ' I.tl is an establiehed princi'le of law the ' where' crimes' arIse out of the, same tranoction the sentences imposed must be made to run conc'urrently See the decisions of this Court in RECENTIN,ATO 3/0JAMISTOvl%8) H0O0D 154k DANIEL'MTUNZE 68 1M0D0 321 and J,AY,ANTTLAL KARA SHAH:" v R (19687 - to mention but a few of the decisions on this point0 On Lhc facts the learned trial magstra.te deaDly errOd' in hid' drde* that the senteripea should run consecutively, The order 'is accordingly va \ie'd to the effect' that the sentences of 5 and 3 years imprisonment are to run. cbncurrentl:; This is to soy that the appellant is to .soffer a total of 5 years imprisonment only The order regarding comensstion reni. ins undisturbed0 In the event this a 'ea1 "is, but for the 'variation in the 'sentence,. dismissed in its entirety0 ARUSHA, 22/12/1977