19830309 TZHC Arusha

IN THE SIGH COURT OF TANZANIA AT ARUSHJ.

APPELLATE JURISDICTION CRIMINAL APEAL NO. 121 OF 1979 ORIGflAL QiMIN.AL CASE NO. 29/77

OF THE DISTRICT COURT OF SAME DISTRICT AT PARE. BEFORE: G.M. MUSA ESG., DISTRICT MAGISTRATE, NEWTON LUCK ........... APPELLANT I .(Origi:.i Accused) vrs.

THE REPUBLIC RESPONDENT (Original Prosecutor) JUDGEMENT. CHUA J. The appellant Newton Luck was chàred with stealing by a person employe& in the Public Service c/s 270 and 265 of the penal code it being alleged that on 18/2/79 he being employed as Station Master at Nedaru so1e Shs.2128/25 the property of Tanzania Railways Corporation. He was convicted and snenced to 3 years iriprisonment under the Minimum Sentences Act. The appeal is against the conviction. Ther was a large area of agreement between the prosecution • and thedefencC in this case. It was not disputed hat the.a.ppellant was the Station Master of Hedaru Station and that his duties included salesoftic:kts to paàsengèrs and collection Of rnoneyiu;.resect of frejght;chargs for goods and parcels It was also not diputed that as the'e were no banking facilities at Hedaru all revenue:hadto be remittd: to'he Headquartez's of the Railways. Corporation in Dar es Saleam. Furthermore the appellant does not denythat from 1/12/78 to6/2/79 no remittance from Hedaru had been sent to the Railways Headquarters which prompted the Corp±'tion to send an audito (Michael Ikole, (w.i), a Ditrict Accountant ( Joseph Kitimbo, PW.3) and Corporal Daniel (Pw.4) to inspect the accounts of the Station1 Finally the appellant does not dispute the fact that after the surprise check was carried out he was fouiid"to have oDliected Shs.2128/25 which he

ought to have had in hand or remitted to the Headquarters. 2 Regarding • ' •.. 2..',..' Regarding matters in dispute r at the trial there was only one question, narnely, whether the. appellant 'had the money Shs.2128/15 in his safe and this was taken by the auditor and his two colleagues PW.3 and PW.4. The proseoutibn evidence had been that the appellant produced only Shs.168/40 wien be was astced to produce all thet cash he had in hand. When the prosecution witnesses deposed on that fact the appellant did not cross- examine them about some other cash amounting to Shs.2128/25 having been produced. Indeed the allegation that he had Shs. 2128/25 in the safe which he did not produce is raised for the first time. in his defence. The trial nag.strate after due c ons iderat i on found the defence story to have been on afte' thought in view of the faot that he considered PW.l PW3 and FW.4 to be credible witnese I am aTho unable to find anything on the record which would make me suspect tIitPW.l PW.3 and PW.4 ganed up to steal Shs.2128/25 in order to put the appellant in trouble. And if such a thing happened then the appellant should have asked questions in cross—examination and if possible called evidence to support his allegation. I am satisfied that the trial court properly directed, itself in rejecting the defence story. • In his memorandum of appeal, the appellant for the first

time raised the question of the &oaching 'Summary Book not having been balanced but this ought to have been raised at the trial if there was any shred of truth in it and at any rate since the appellant had admitted that he ought to have had the slim was charged with the relcvanc3 of this argument is herd to see. In the final analysis I see no merit to the appeal and accordingly dismiss it 'entirely. L.R. CHUA

JUDGE 9/3/83 LRC/ra. '