19771214 TZHC Mwanza 1

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AT MWANZA . . . . ': . . . • , . . . . S. • . 7 HJ;cP COJPT CRININL APPrL N01S8 OF 1977 7 . : oP CRIMI!AL CASE NO154 OF 1976 OF • • :• • TE DI3TRICT CJURT. OF BUKOBA 1)1 PRICT AT . -BUK)EA BEr'OrE: J', RESI1Ei'iT HA1STR1tTE G )LCJL ./O , iiRI , 0 ZtPPELLINT versus :. . . •. 0 T-{ TCPUBLIC •.,., RESPONDENT CuRGE - 1st count - Attempted suicide c/s 271 of tic? Penal Code. 2nd count - Stealing by a person employed * in Public SLrvlca c/s 270 of . r the Penal Cock.. JUDGI'iENT I •0 MFJ.LILA, J 0 . .:: . •0 0 love. s./o Sumari,was charged at the District Court Bukoba uith two counts In the first count he was charged with atteinpc2ci .,uicidc contrary to sLctlon 17 o the Penal Code and in -the cond count with stealing by srva'it coritrry to section 270 o the Peria] Code, 1 -Te wis f'un guilty on both counts and eitcnc..c1 s to 21 months in'orisonm'nc on th... first count and fiv years imprisonment on the second count0 The s(ntences were ordered to run concurrently. This appeal is acjainL these findings0 Jt tne tn-al the evideece 'hich wa led sho,s that the drama in this case started on 13/8/76 whn the apoci] ant was found missing t his office, namely the ReOionr'l Coiruiusioner's offic Bukoba, whcre he w . as working as 1tccunt J-ss1stant Grade I. M he was the noldar of some keys at the office, the head of this deoartriait i,c.. the Rgiona1 "ccounthnt Mr. Jm...s Patric Mling, (Pw.l)

sc.tsomcoody to fetch the appellant at his place0 The appellant was not seen at his hone and all that was found were two: notes, oic. aoaressed to the Regional Jccountant informing him of his decision to kill himself and also that he would find the ofricc keys on his tablc0 The second note was addressed to his friends in which n. requested them to take his dead body to his home p1ace.. somewhere in ILrusha Region for burial0 Thse two notes greatly 0 shocked i a Pegion1 'Lccountant. He thercforc, r ported the matter T 00 at the Police Station. Until late during th& evfii g of that0a ... the:appa.11ant,. had not been.tracd., At about 6.30 p.m. the appellant was found 'smeone in Education Of fie at Bkobaand' taken to the Regional Account'at who took him for treatment at Bukoba Government Hospital as h appeared to he extremely ill. As the pbl]Mrit had indicated the loss of money in: his notes, arraneients 'wee made 'to have his accounts audited, and this was done by the Regional Internal Auditor on 17th Augu.t', 1976. I Whnb Ed iard Okclo PWD3 check d th s a - :o rts he founcl, shortagts, and on fai1irig to .•t an explanation from the appellant,.' the case was handed over to the Police. At, his trial the appellant denied stCling the money. 0 but he told th court the circuastonces of how the loss came about 0 that the noaey was stolen at his office .;hen h arrived from the

baik. This exo1anation..w/2 0 C -2- This explanation was rejected by the magistrate who found him guilty and imposed the sentences as indicated. I will first deal with the charge On the first count. I do not think there any, mrit in the appei against conviction on the first count for the evidence had more than proved that the appellant attempted to take his om.iife by taking an over dose of malarial tablets. In fact the appllcnt adritted as much, and as such t is ap l is disnissed. I will now turn to the 0: once of:Stealin - as a Public S rvant in the 2nd count. I think that the prosecution could have led hotter evidence to ...stoblish this charge in which the principal witness was the g.o' Irit nal 'uditci Mr. Ed'gr&O]elo (Pw.3). This witness as it 're started in the middle, h did not say or tell the court th ea.ct aiounto,f loss that he.fo.unth All he did was to give a seris of figures. He told the trial court that when ho was asked to check,.the appellant's....acc ounts, he did so on 17/8/1976 and that this dhck• took th whole day. In th.. course of the check of th.se acconts he S;d ithathc fouridthttho.appeiiant should have had, shs.170,698/90 made up of cash in the form of unclaimed wages, imprst, 24 quid: •ah, revon'ie: :pnd : :oating improst. He went on to say that the cash in hand €6ilañd with whatever balance that there was after the documented expenditure. It was on

this points .that the evidence of this itias totally confused. He told •Lh' ri a I cou tth a t:th e amdnt of money which the appellant had banked during the i6lai vantHporiod was shs.73,967/80 shown on pay-in-slips and letters of transfer produced at the trial as I Exh. N, 0 and P. All this did not make any sense to me because all these items i0e, liquid cash and..und1imed wages could not have bean on the side of ependiture, I thought that these items could have been itemised on .L) revenue side. however on my tt, my checkirr of the riguras revealed that the dif.ercnc b tJeLri the cash rhich the apo ullant snould have hart 1 e, hs,170,69/80 and th, so c3l1 d eøcpo -iditurt as itmised by Mr. Oklo i.. ns- 137,310/30 is shs.33,38e/-. But if ont. 7,, -looks at the charg.Lr1 hL second count on sacs that the amount involved is shs.43,13l/10 Thich the apn.11a-tt is el 1 cd to ha'V - stoln. Thre is thus a di re - c of about shs l0,00O/ 'etwen two figures and thereis no xp1arration regarding this -differenc. At the hearing. of this. appeal, the learned State Attorney Mr. Rwechurigura did not art mpt any explanation anart from s ring that thL appella t did not c'r any explanation on this differe c, all he said ws that the appellant must be respocs1bl ocause ho offered no exp1tion for ti-ic 1os of this sum of mon.y. It my b. that there was lflCtL a loss in the apDcl1a6t's ccounts, but th

evidece of Cdward Okelo did i.iot disclos th . .a ou-it of less or how it C*L about, In the sLcond count, it was -cc Lhe oroscution to jrove loss aed also that -from tee surburiing ircusta ides ±his loss msthVe eh caused t by theft on the appcllort's ort, s i'-idcoted such evidence is lacking, accordi gly allok the apOLal a airist conriccion n tht second t, quash, the dohvictio, set ,ide t h e but as: the apeIint has been inoiisq.n for more than nih e months, I r ducethe sentence imposed on the count to such an extent s will rLsult in his immdte rLa.ease frern prison unle.s he is othcrwiso lawfuLy detained. 1ivrtd i'i court at Nwaeza this 14th y of DCCCI'1eLR, 1977. ... ..... .,. . . ...,..-