19770810 TZHC Dodoma1 1

IN THE HIGH COURT OP TANZANIA 7-c AT DODOMA APP LL':. TE JURISDICTION HIGH COURT CRIMINAL APAL No. 78 OF 1977 ORIGINAL CRIMINAL CASE No. 56 OF 1976 OF THE DISTRICT COURT OP DODOi:.L DISTRICT AT DODOMA BEFORE C.G. MTENG-A, . . . . .S. RESIDEMT LLGISTRATE P.SCHL.L H. SIRIK. • , , , . . . APPELLANT Vs ru S THE REPUBLIC , . ......... RES2OND]FT CHLRGE: Zizzts nf: Stealing by servant c/es 265 & 271 of the ?erl Code JUDGMENT (1UTDm The appellant, Paschal H. Sirikwa, was convicted by. Dodoma District Court on three counts of stealing by servant c/ss 271 and 265 of the Penal Code, and was :nced to three years im - sonnent on ach count, which seat ences were ordGred to run concurrently. He now appeals. The evidence is not at all in dispute. Th. 0:. e].lant wa: a branch accountant with the National Milling Corporation at Dodoma. During the month of 3une, 1975, one Rovocatus (Pw.3) was the cashier. On 27/6/75, the appellent went to Pw.3 and naked for shs. 400/— for the purpose of buying toilet paper/tissues for th e office. Pw .3 then gay the money to the appellant arid the appellant acknoccigod the receipt of this money by signing a chit to that effect. This chit was tendered in court as exhibit P.2. On 28th June, 1975, Pw.3 gave to the apollnt shs. 2001— being advance to the appellant, and the appellant duly acknowledged receint ci this money on a chit which was tendcroi in court as exhibit P.3. There was a further sum of shs. 100/— which was given to a worker one Anna Eanda (?w.9) as an advance and for which the apsllant signed a chit - exhibit P.4. In or about June, 1975, the appellant rec..;iv;d shs. 600/ from Pw.3 for the purchase of football boots for the Corporation's football club. All these chits, it woulçl appear, were i'ound in possession of Pw.3 when one Rogate Masawe cai:o to take over from the appellant. It was then alleged that the appelJant had not bought the articles and had converted the money to his own use. The appellan:b ndrittod thuso facts, but strongly challenged the accusation that he stole the money. The aellant stated that he took the money for iurPcss aforesaid; that he went around the town looking for the said articles and that when he could not get the items he wont back to the cashier' s office some two days later to haid over the money. On ar]val there ha found another cashier (Pw.4) because Pw, 3 had left for his home to attend a funeral • .2 - 2 - The appellant t}icn .told Pu.4 to give him the chits which ho had signed for the money so that hu could give back the money. Pw.4, however, could net rAd tho iits as Pw3 had apparently locked them in his drawer. The appellant, therf.ro , decided to kep the money. ?u.3 returnee ebout the end of August, 1975, and policeaeested the cçpellant on 3/9/75 before the appelimnt had returned the money to Pw.3, Po lice found ll the money in the appellant' s house. The central Question in this a?poal, ther fore, is whether the takin. of the money in thoso circui;tances emounted to stealing. As pointed out by the learned state atternoy, it is not aparont from the record as to who was the :rson responsible f authorization of' payments of advances or eurchasos. According to the a:ellant he was responsible for buying things for the office, and That such purchases used to be by cash or by cheques. I an inclined to accept this because, according- to Pw.3, Pw.3 expectod the appllani; to bring rocci -nts to him after :Tuchaoing th articles. If this had net boon the practice, it is inconceivable that Pw.3 would have given tho money to the appellant for such purpos c on at least two occeeions. I qrL further fortified in this view by the evidence of Josephine Miafya (Pw.4) who was the person who assunod the duties of cashier when ThT.3 left for his hóe. In her answers to questions put to her by the court, she said that sho saw nothing wrong with the manner in which the money was given to the appellant in respect of exhibits Pw.2 end Pw.4. On this point the record of the trial court reads as foflows:- "By the Court: Given ex.P.4 - In my capacity as a cashier I would as w(-ll give our money ac recuested in ox.P.4 for our regulations authorizes sic). Given ex.P.2 - Even this chit I would as well have given th -ccused tn c money. From the evilenc e of the ores ocut ion witn:ees, therefore, it is abundantly clear that in so iar as the taking of the monur for purchases of o:Lficc articls was concerned, the teking of the money was, abinitio, lawful. In order to establish the offence of stealing, it is necessary to prove that the taking was withut the consent of the owner and with a fraudulnt intent. I can S:.O n.:- thing on the evidence to sug,çost that the taking was without th, consent of -th c owner, or that it was with a fraudulent in;ont. It would have bn a different matter if th.. appellant had himself bàon in cast ody of th money end then foil d to account for it, or, having takn th money from Pw.3 he had converted it t his own use. But the evidence is to the Contrary! the evidence shows that the appellant t ok the money frcma person who was in possession or custody of it, end tha1 the money is still intact, end was in fact .rcducOc1 in court. Th explanation given by the appellant is inhorontly probable supported as it is by the eviTence of no lesser witneeses than Pw.3 and Pw.4. In these circumstances, therefore, there is not an iota of evidence to support a finding that the appellant took the monr with a fraud ulent intent and withoet the consent of the ownerncr is There evidence to show that having taken the money theapc-llant converted it to his own use. With regard to the sun of shs. 200/— in respect of exhibit P.3, again there is no evidence that The taking of that money was without the consent of th owner, or that it was with a fraudulent intent. - 3 If it had been impreper to rocuiv o money in tho eaaner one wonders why Pw3 should n o t have resisted the rajollont' s request arid rofear'ed the a pellan-t; to the branch nanagor That is not el1 if it was stealing for the CPPllant to take shs.200/— from the cashior.s an advance', then why should it not have :en said totealing in respect of the ths. 100/— given to Anna Banda?' As If have earii•r remarked, it might hove bon a different matter if thu aopellea'it had b-en'in custmdy of the money and then advanced himself that money, for then there would have boon some basis for holding that the apnollant took the money without th:. consent of the owner. Since all th: ovidenc a regarding the tthing of the money does not at all suggest any fraudul•;nt intent on -the part of the appellant but rather to the contrary, and in tho absence of any evidence that the appellant thereafter converted the money to his onw use, I do not think that the convictions, which the Republic declined to support, should be allowed to stand. On Those grounds, the convictis on are hereby quashed, and the sentences set aside. The app:Ilont must be released from custc..dy forthwith uni ess othorwis lawfully detained. yy B • D CHIPTL J[.JBG-E Delivered in open court at Dodomo. this 10th day of August, 1977. -i - -- Th B. D. CHIPETA JIJIJGE.