19710913 TZHC Mwanza2

'a.s- IN Ti TTa14 (i ' ANIA AT iiLA - Appellate Jurisdiction f •5 (11 • ORILNJth APl!L N0424 ' 197 0 1 (0rigina- C±iraina1 Case No. 025 of 1969 of the District Court of Geita before C. HiIsamati Esq., District Lagistrate), LUCAS PIETRO ' . . • • • • , * • , •APPELIA1'!T (oRIGINAL ACCtJSZ) versus THE RJPU]IC . . . . . . . . • , . . . . •RESPOEDEIT (oRIc-INL PJLOSECiJTOTI CHARGE:- Stealing by person è;iployed in public service c/ss 270. and 265 of' the Penal Code.

JUDNT M.AKAIVIE, J. The appellant was found guilty of stealing .2426/55 contrary to sections 265 and 270 of the Pens]. Code. He was sentenced to three ycars and 24 strokes and was further ordered to pay back the money to his employers, the Revenue Office s Geita. The appellant and another person, both employees of the Revenue Department, collected some .3581/90 and apcounted for only .455/35 Later the appellant paid in another .700/-. The appellant made a statement to the police to the effect that the. money was stolen from him one iüt when he was staying at a lodging hci:c During the trial evidence was adduced to the effect that the appellant made no ±epbrt• at the lodging house the fo1liig day or at the nearby police station This may wall be, but. according to P.\. 2, the appellant and his colleague dd report to the Revenue 0fficer their immediate superic.r- The appellant denied &n'ing the trial the contention. that he paid back .7001- tcr being given time to pay back the money Apart from P, ,: 0 2 bare assertion, there is no proof that the appilant did pay $.700/_. It does seen odd that P. 7 .2 prodUced no receipt or• some other record to - showthat. he received the money from the appellant. The appellant s point in his Petitiou that there was no documentary evidence seenS the ifore, valid and weighty. P)rther, even if one was to believe P.VT.. 2 that he gave the appellant

and his colleague time t0 make good the baa, and that the appellant did make good the loss to the extent of 700/-, it is open to arument as to whether that constittvtes proof of the appellant t a cu1pability It may only go to show th'at the appellant owned some responsibility in so far as the money got bost when he was reponible for Its safety and/or it may show a dCsi±'e to pay up marely so as to avoid osing op s ob and the distress of having to be involved in a criminal trial. - I am sti.ied that the appellant did make the statement and th3i it - ws voluntary. The statement to the police does not support the evidence of P.1 .1, Detective Sergeant Major Machunda that the appellant said that the room in which he spent the night at the lodging house was - - 4 7 broken into. What the appellant did say, according to the statement tendered in evidence by the prosecution, was that he had taken beer and would not remember whether or not he in fact locked the door I-Ic found the money missing the following day and he went to Nyakasio to infom his senior colleague with whom he was later chaxged. The fact that there ws no si of forced entry into the room is therefore neither here nor there ; There is also. prosecution evid -ice that the appellant sat drinldng in the Bar of the lodging house till 10 p.m. when the place want completely dry, and defence testimony that he was seen shoeless

in the Bai, utterly disabled by drink'. It is possible, and indeed likely, that more wodly people relieved hi-in of the money while he was lying in a drunken stupour: The appellant had been a Revenue Collector for just over two months I am not satisfied that there is no reasonable doubt about the appellant's guilt.. Consequently, I quash the conviction and set aside Bentence and order. Unless the appellant has temporarily forfeited his liberty on account of something else, he sha1d forthvdth be released and set at liberty. For the gui-dane e of the trial magistrate and the prosecutor, the appellant and his colleagues shoulI have be?n charged, if at all, with stealing .3581/90 less 455/35 The 700/— aileged to have hec-n paid back should not have been taken into account because, if there was any theft at all, there was thçft of the whole lot - loss only S. 455/35, notwithstanding the fact that 3.700/— was later refundod Delivered in Court at WIwa.nza on -Uüs the 13th day of September, 1971.. (Ii. Me Makaine)

JUDGE