N

rZ IN THE HIGH COURT OF TANZANIA Hc

AT ARUSHA

APPELLATE JURISDICTION HIGH COURT CRIMIN1\L APPEAL No0 213 OF 1975 ORIGINAL CRIMINAL CASE No 0 396 OF.1974

OF THE DISTRICT COURT OF KILINANJARO DISTRICT AT MOSHI) Before: M.M.J. Luguru 0 0 0 0 0 0 Resident Magistrate JOSEPH S/0 TEMBA 0 0 0 0 0 0 0 APPELLANT versus THE REPUBLIC 0 0 0 0 RESPONDENT CHARGE: 1st Ct: Stealing by public servant c/ss 270 and 265 of the Penal Code0 2nd Ct: Obtaining goods by false pretences c/s 302 of the Penal Code. 3rd Ct: Receiving stolen property c/s 311(1) of the Penal Code.

J U D G M E N T JONATHAN, J. The appellant was convicted of one count of stealing by public servant and another count of obtaining goods by false pretences. He was given a substantive sentence of 5 years' imprisonment. The appellant at the relevant times was employedin the office of Regional Government Stores, Moshi as a clerk responsible for ordering stores. There is agreement that in the month of May, 1971 four 'ocal Purchase Orders (L.P.0) were stolen from the accountable stationery of the Regional Government Stores, Moshi and that two of the.se in the month of October or November that year were used to obtain from the State Trading Corporation (STC) at Moshi 18 tyres worth ShSe 16,318/30. The LPOs had purportedly been issued by Pw.13 AUGUSTINO, the assistant stores officer at that depot. He however denied issuing those LPOs and according to him what purport to be his signatures on them are forgeries, He recognised the hand- writing in one of those documEnts as that of the appellant. Pw.14 LEOKADIA who also worked with the appellant was however unable to say in whose handwriting either of the documents was. One lot of the tyres was indicated as being for the Forest Department at Rongai and the remaining lot for Comworks at Same. Pw.3 KAYOMBO and Pw.4 ANDREW, testifying for their respective departments were however clear that they hd made no order for tyres and they had not

received any of the tyres. It seems that the vital clue in the investigations Was the motor vehicle shown in those LPOs as being that on which. the tyres were loaded. It transpired to be a peugeot pick—up driven by Pw.7 SEVERINE. %ccording to him he was approached by the appellant and hired to have his vehicle carry some tyres from the godown of STC O - 2 - The appellant, he said, ws accompanied by Pw06 JOSEPH0 They t to the 'house of Pw68 LASWAI the ppellant'sioth:'r • in-la,:where they off-loaded the tyres0 A few days later he w&s' again hired by the a"pellant to take tyres from that godown : at the appellant's own house 0 and this time, 1*. offloaded them The account of PW.7 appears supported by that of Pw06 and that of Pw012, the ape1lañt's sister married to.w,80 Pw06 said at the relevant time he was being medically treated at the house of the appellant's father, and during the period of treatment the appellant had occasion to give him some documents, the relevant LPOs, with a request he should take them to Pw05 MAPUNDA of STC. He complied and Pw05 seems to have processed them and handed them back to him along with other documents, presumably invoices0 These he 'then handed to the appellant who after hiring the pick-up of Pw.7 took delivery of some tyres at the STC godown, and these they off-loaded at the house of 1 1 w 0 8. They subsequently made another trip to that

godwon where they were again given some tyres0 As to where he took them his account differs from that of Pw07 who, as already noted, said they offloaded the second lot at the appellant's house0 Pw.6 1 on ' the other hand, said they offloaded this lot also at the house of Pw 0 8 0 Pw.12 ANGELA, for her part testified that, in the month of May, 1971 his brother, the appellant, came to her house accompanied by Pw 0 6 and a person driving a pick-up loaded with some tyres. The appellant, she said, wished to off-load the tyres there0 She was however a little sUspicious and asked him to hold on while she ran to consult with Pw08, her husband0 When she returned, however, she found they had left tak1n the tyres with them0 Her account'would therefore seem to agree with that of Pw07 to the extent that they called at her house only once and not twice as Pw 0 6 said 0 Their accounts are however in disharmony as to whether they left the first lot at her house or wheth(r they went back with them as she claimed0 There is also of course the aspect of time0 For, as already noted above and has been pointed out by the appellant in his petition of appeal, she said that happened in the month of May,19710 If that be true, she must have been talking of on incident unrelated to the present proceedings 0 Pw. 5 MAPUNDA who received and processed the LPOs testified h did not know who had presented them to

him0 The evidence of Pw011 who issued the tyres, too ) was not helpful0 For, he did not know who received the tyres and signed the invoices as having received them 0 The appellant in his eridence said in the month of May, 1971 he was on 1 ave which would have made it impossible for him to steal the LPOs0 As regards the allegation of obtaining he categorically denied going to'STC and receiving any tyres there 0 He admitted Pw06 had been a mental iatient of his father but denied all the other allegations he had levied against him0 The evidence of Pw 0 7 and that of his own sister, he said, was not true0 As 6lready pointed out, there are numerous contraditkns in the prosecution evidence0 It would appear that Pw06, Pw07 2 Pw08., Pw012 and •Pw013 in different ways and to varying degrees had their own interests to serve in the case0 By and large they were connected with the'theft ofthoe tyres, however innocently, and they were in the peril of being prosecuted, and I think that explains away most of the contradictions0 Their evidence would therefore have to be received with caution0 I am 'however satisfied. as was the lower court, that all the evidence taken together leaves 'no doubt as to the guilt of the appellant0 - 3 - Pw6, Pw and Pw012 appear to have been strangers to each other and there could hove bren littic occ - s1on for them to conspire gainst the appellant0 Pw 12 was

the appellant's own sister and as relations between them appear to have been good she could not in my viw have said her brother had brought tres to her house if he had not in fact done SO0 I note no tyres were in fact found at her house and it could not be said she was exculpating herSelf when shc mentioned th& aopellant 0 In the result the appeal is dismissed in its entirety 0 .... : ... P. M 0 JONTHAN

JUDGE S