19820817 TZHC Tanga

• ' ç' IN THE HIGH COURT dP.TANZANIA 1<

AT TAN GA APPEtLA-TE JURISDICTION CRIMINAl ApPEAL NO. 38 CIF :L%8O (original 'brijnjnL1 'Case No. 313 of 1979 oVthe) • (District Court if .Tanga'Distrit Before CJINDI Es Resident Ma.strate o± JUMA4 ....•. .. ..APPELANT. (Orig' tccused). . Versus HE REP IC...RE8PON!1 Orig. ProSecitor: CHARGEi at Count: Stealing postal tatters c/s 267 of the POnal Code Cap. 16 vol. 1 of he Laws, •.: 2nd Count: Stealing by Servant a/s271 and 265 of the Penal Code Cap. 16 Vol. 1 of the Laws: J U'D G E M E N T - JJ -., ", I - ,.• This appellant was ch-.red in the alte'native with the óffencs of :Steling Postal mattr und Stealing by Serant These are offences under the Penal Code On 'he first count of Stealing Postal niatter he was charged jointly with c.iother person who was also charged ,oione in another Count of Simpl theft contrry to section 265 of the Penal Coder The said person wa. acquitted on both counts and he was djscha rged The appellant was p however, convicted as oharged on Count one of Stelaing Postal matte' nd he was sentenced to three years impri sonent, The learned Resident Magistrate refrained and quite correctly toot from entering any verdict in the Stealing byServañt count 3 Dis satisfied the appellant now appeals to this Court The facts of the case as found and acted upon by -the learned Or 2 Resident simple and straightforward. The appellants was, a Iest a the time or his arest

in connection with r th.s mattez, an employee o the Taitzctni'i Posts and Teleconmiunica -tions Obrporation and he was at - iched to jb.e General Post Office, Tanga He :j * was the person in charge of the sorting sectjon His office was separate' from hë counte where, aiong other persons, PW]. used to work. The±e was howe -v-er, a c.crmecing door between the appel1axts office and the O Eiiddcsgiven lr pWl to the effect that his duties included selling Postal Orders The procedure was that whenever he sold a PbStaIrdr he woi1l s -Ltmp±t with a rubber stamp impression at a Space provided for Such for the issuing o±'fice Apart from the date arid other details ihe rLber Stamp which PW1 was then using had the letter "E" inscribed oit On 24/6/79, a Satuiday, P171 had Postal orders valued at Shs' 1,0001= at the ølose of theein a steel drawerwich was in his cubicle at the ccnter He 1 however, did not • • - lock'thie said drawer The.fol1owjngdaya'5unday and he f .j,Q, PW. ddnot • report on duty On .he, .:b1ng Monday, i.e. 25/6/79, *hen he reported on duy and checkd his drawer he was siriâ to see only Postal orders v'luec1 at Sh 931=. The 1- est, vajued at Shs. 9091=, were missing He reportd the matter to his een.iors 7 PW3 and PW4 On the same Sunday, i,e. 2 5/6/79, the appellnts co—accused at the tr:i.al and W}- om I s3 ll hereter call the second accued 1 called at the Ngamani Post off i

e Wit} - fifteen Postal orders v1ued at Shs 1 525/=: He presented them to p?2 1 the Postal clerk who was then on duty, PW2 decided to pay cash to the second accused becadee 119 knew him personlly and in fabt, he endorsed to the same effep on each one of the fifteen postal ôrdës which he cashed for him. , 1 I The postal ordsWjdh were :stdlefl from p't drawer and those which the seco - accused asbed t Ngam1au. ?ost office had their numbers recoèd 1by pVl and pW2 iA the noxnJ. course of. uty By sheer oi.ncideuce the wife of PW2, who did not giv evidence tn the case s isalso an employee of the Tanzania Posts -md Teleco... mniunications She w-ms it the material time attached to the General Post off ice Therefore, when the news spread at the General Post office that Som? PoS -t.1 orders had been stolen she too heard, Later whermhe returned hume, she étIoriédthis to he±' 'husband., 'PW2, who then decided to check the numbers of the Postal orde'rs which Were brought to him by the second accused on the prev1omS day It was discoered that the num.ers ti.liied and they were the same. The matteF was then reportp to the Polic r not or .1rno sech aQcuse;-1y narne and on1y le alo,.iev., where the.se.çond accsed lie He., therefoie,: Wpnt and called the second acou.edw1ao was susequently tmken to the Polce St'm1ion. While there tie second accused diclosed that he got the Postal orders ° .from

the ap)elant When oonta.ted ad. tn 14s atateent whIhhe made..o..a Justice of the Peace as well as in his sta - emen in his own. defnôe.at •the trial the app61lnt coñccdéd that he wap the one who gave the fifteen Postal 0rdrs, Exhibit P2, to the second accused. According to him he,- however, bought them froj iPWl -at th e .-eneal Ppst Offiee He did so beGause hdid not want to keep any hard c'msh on him He preferred t1e par Later however, he met the second accused to whomhe.ws13debtedto he taeo:Shs 6Oó/ He,herefore him the POstal Orders under querry .... S Tie lèaned Resien Mag tate. not .ürprisiñly, disbelieved the ppeIIant ' story in defenc and procèedOd Ito convict him. S . •: d:r :: ....... I / - 4 In his peti- tI on of :ppeal- the appellant aits that he bout the Postal. orders lawfully frSm .J - VI As aforesaid p\t himself denied .this His denial was supported by the fact.that the said sale was not entered in the Counter Pota1 Order Balance book s Exhibit P.1 2 where 1l Postal orders Sold 'r entered Secondly, the rubber stamp impreSsion of the: issuing office .Exhjbit P.2 shows that the sale was effected on 17th June 1979, which was a Sunday when P11 was not on duty To this the appellant replied that only members of the public could not 1iy Postal orders on Sundays Members of the Postal staff like himelf, however, eould. If so then the nexi: question that arises is, since

these Postal orders disappeared between 24/6/79 and 26/6/79 how come that the date stamp of the issuing office is 17/ 6 /79? Again, how come that the said date stamp impression does not bear P 1 s code letter tIED? The answersto- these questjons are not forthcoming. It must be borne in mind that the appellant was also an employee of the T.P. & T.O: He was head of the sorting section One would therefore, reasonably have expected him to Imow aow Postal orders were treated.at the time of sale Perhaps the most aiiing of them all, in his statement in defence the appellant said thath. boght the postal ordrs for safe custody ó h1 fa1 0 tiat a man ofthappel1ants stinding in society would be so stupid as to buy oèt for the safe custody of his money There is a CommiSSion payable on each Postal order and when blank it is as susceptible tO theft as iy pther paper money All in all, on iy evaluation of the evidence I an satisf ied,t as was the learned Resident Jf1agastrate that the only reasonable inference to be drawn fron the established facts is that the appellant stole the saidosta1 orders The conviction therefore sound in law \ C J -:.. ---• .. I 1 5 and it is hereby upheld Turning to sentence s there is nothing which can make this Court feel that the sentence of three years irnprisonment is manifestly excessive in the circumstanOes In the final even this appeal fails and It is hereby dismissed in its entirety ill f (H.E'.D. ya) 10 Judge 17/8/82