19770614 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURI.. ICTION HIGH COURT CRIMINAL AS/L NO0 381/1974 ORIGINAL CRIMINAL C'SE NO 460 OF 1973 OF THE DIST?ICT COURT OF ARUSHA DISTRICT AT ARUSHA Before J.10 Mrosso ----------------------Senior Resident Magistrate JOSEPH SARONGA ---------------------------------- -----

APPELLANT (Original Accused) versus. THE REPUBLIC ----------------- ---- ---- ------------------ RESPONDENT (Original prosecutor)

JU DG M E NT Jonathan, J0 The appellant was convicted of obstracting electricity c/s 283 of the Penal Code and sentenced to 12 months' imprisonment0 There was another accused charged jointly with him0 He was however acquitted Both accused were employees of the East African Community at Tang.rU, Arusha where the appellant was allocated a living unit in house where pOW 1 and another employee of the Community also had a a unit each0 it se:ms that between the months of April and June, 1973 the appellant invited the second accused to stay with him in his unit while awaiting allocation of accommodation0 All the three units were installed with electricity and for each of them a main switch and a meter were provided0 Initially, the flow of electricity was designed so that in each unit the electricity flowed from the main ,switch through the 'meter to the various arr.s needing electricity. The power consuption would be recorded on the meter0 That had been the normal practiceand P0W 4 the Community's elecrtrician in his evidence said that was the lay-out of the installations in 1969 when they first occupied those houses0. In the month of June1 1973 the appellant was transfeed to another station and the other accused succeeded him as the tenant of that unit0 1: had for sometime dawned on POW 1 that his electricity bill had of lal.e risen sharply0 The reason for this, as was to he

'.'liscovered in or about the month of August that year, was that a wire had been connected to the main switch of P0W 1. conducting elecrtricity to. the appellant's main switcl3 by-passinq his meter0 The result was electricity.being consumed in the appellant's unit was not being rcorded on that unit's meter; it was insted being recorded on the rnetr for the unit of P0W 1 who was ac-cordingly bearing the bill which would have gone to the appellant for pyment0 On the basis of the foregoing it was urged by the prosecution t the appellant was responsible for th. , wire device so as to avoid payment for the electricity he had consumed0 It was his defence on the other hand that he had in the month of January, 1973 moved in to find the unitIad electriciiy0 Late; in the month of Apri) he received a letter from is employer informing him that, commencing from the following month electricity ch.rges would be deducted from his salary0 At the end of May a transFer order came and in June he moved to another station leaving the second accusedin occupation of his unit. It is relevant to note that he did not produce the :.ct:er with respect to payment of electricity char1es, while neither the prosecution nor the coiirt souqht its production0 However, the appellant while the judgment was pending seems to have seen the learned trial magistrate to hand him 0 0 0/2 0 -2- the letter0 He would not

however recei at that stage and in the absence...of the prosecutor. ' in hie eatiton he expressed a desire to he present at the h. .aring of this appeal to tender the letter and other correspondence0 Unfortunately however, despite repeated efforts be nq made it has not been possible to trace him for service of the notice of hearing0 The tésimony oft. the second accused wash roadly in agreement0 He, too, he said, did not "pay. for th"elcctric'ity he consumed after the appellant's departure, this because the appellant had t.ld him of the letter referrd to c1JOVo He expeoted therefore, that a similar letter would be forthcoming to him as 'well. He had hoover not received it when the device was discovered0 Th.re was a dispute as to 'the" time the. appellant moved into that unit. P.W 1 said by the month of Nov6mbe5 1971 he had already moved in. The appellant on the other hand stressed all along that he had moved there in the'm&nth.of January, 1973. The employer's letter of alloc.t,ion mioht have decisively resolved the matter but, like the letter regarding electricity charges the appellant claimed to have received frm his employer, the letter of allocation was, neither produced nor soujht to be produced. It appears to be among the docum nts the appellant in his petitioh has expressed the. desire 'topoduc at the hearing of this appeal. It would, bdspecul'atin'g to say what the '.'c

letters would in fact have shown' had they been produced, but 1 think an adver e .1L'lferencc., :shoufl be drawn against the prosecution for not dem"ndincj production of the loter of ailocoton or itself producing the fice copy of such Idt 1.:er. That as' I have said) would have been decisi' e of the matter whether he was allocated that unit in the month of J anuary, 1973 as he claimed0 itis' not under th'e'cirumstances possible to say definitively that'ho was in. occupation as early as November,, .a9 7 1 and 1 think his version ,sh,old. be gven the benefit of doubt .th't'it could well he true, in ,tht.event, the chances were. .th=ct.the device micht have been installed,., previously to the occupation of the appellant, of, which he, l.ik",e POW 1 and' the other witnesses, iripht h:ve had no. knowledge0 Is rhgards the other letter, 1 cannot say, as 1 have stated, what it would have shown had the appellant appear€e an produced it at the hearing, but bair Lsc.. l'woild give himththo henefit of.dcubt that it cOuld have been a "genuine lett:. th rOehe to the mode cf poyinp for the electricity ch'oges. . in the result, the cenviation is set' aside togethef with the sentence Delivered in open CdUtt this 14th 'day of June, 1977. r r4 r(myT ' rfl1J i