19841025 TZHC Mtwara4

IN THE HIGH COURT OF TANZANIA AT MTWARA ~~LLATE JURISDICTION CRIMINAL AH'EAL NO. 18 OF 1982 C/Fo CRIMINAL APPEAL NO. 19 OF 1982 OPJGINAL CRIMINAL CASE NOo l OF 1981 OF THE DIS'l'EICT COURT OF MTliJARA DISTRICT AT MT\JJARA f BEFORE~ JoDo MASAKI Esq., DISTRICT MAGISTH.ATt PAULO s/o MALIWATA 00•0000000000 1st ACCUSED MICHAEL s/o RAISI 00000000000000 2nd ACCUSED Versus THE REPUBLIC 0••••0•••00000000• RESPONDSNT ( Original Prosecutor.) J U D G E ME NT MAINA, Jo The two appellants, Paulo Maliwata and Michael Raisi f whom I shall refer to as the first and second accused, respectively, were charged with; and convicted of, Stealing by Public Servant contrary to Sections 270 and 265 of the Penal Code. They were each sentenced to five years impri$onrnent, under the Minimum Sentences Act, because the medicines stolen belonged to the ' Ministry of Health, and the value was shs.8,000/=. The first accused was a Rural Medical Aid. The second accused was a Rural Dispensary Attendant. They were both stationed at Mahurunga Health Centre in Mtwara District. The prosecution evidence showed that the keys to the store in which medicines were kept, were given to the first accused on 8.11.1980 by PW.l Turamo Hbilinga but there was no formal handing over of the medicines in the store., There was evicience that while Turamo was away; tht, first accused left the keys to the store at the house of PW.2 Felix Masunga~ a co-worker of the Health' Centre. That was on 12.11.1980. So,.Felix took the keys and opened the store. The first accused had travelled to Mtwara • •••••• /2 ./ i 2 Felix had the=: keys for the whole day and on the following day he gave them to the first accused. Again, there was no handing over of whatever was in the store. On 15.11.1980 the first accus~d gave the keys to another co-worker, one Halima Amdani 1 who later gave the keys to PWe2 Felix. The theft of eight tins of tetracycline capsules was discovered by P~o2 Felix on 16.10.1980. It was then claimed that the first accused had stolen them. .~ There was also evidence that on 29.11.1980 the second -~ a.ccused gave a bottle full of tetracycline capsules to his former landlord, PW.3 Mzee Kupewa for saf1: custody., · The second accused had sent the capsules to Kupewa•s house and Kupewa called his ten-cells leader, PW.4 Ibrahim Mohamed, to be a witness. Kupewa knew that the second accused was working at a Health Centre and it·;was agreed that the capsules remain at Kupewa 1 s house until the second accused went tc take them. It was provE!d that the tetracycline capsules were stolen ·from the store, but the point is whether both these apµellants jointly and together stole the medicines. The only evidence against the first accused was that.he had the keys to the store at the material time .. ,:, But, as· the learned State Attorney pointed out, several other people had handled the keys. It is also important to point out that there was no formal handing over of the medicines to the first accused. Anyon1~ of those . who handled the keys between 8.11.1980 and 17.11.1980 had access to the store. The keys could have been picked from PW.2 Felix Masunga's house where the first accused had left th~fl\, and someone other than the first accused, could ha'!e used. ! the keys to unlock the store and steal the capsules. I have already mentioned the people who had the keys at that time •. ··-· The fact thc1t the first accused made several trips to Mt~~ra during that period is not conclusive proof that he stole 'the capsuleso The learned State Attorney conceded that the evidence did not establish the first accused's guilt beyond ,/ reasonable doubt and, with respect, i agree. As regards the second accused; he was working at the Health Centre at the material time, though he had ~ot officially handed over the keys to the store. However, the evidence by •oo•••WJ/3 3 PW.,3 Mzee Kupewa and PW.,4 Ibrahim Mohamed established beyond a shadow of doubt that the second accused gave to Kupewa one bottle full of tetracycline capsules for safe custody. The second accused asked this court to find that Kupewa and Ibrahim were liars. I am not prepared to find that the two witnesses told lieso There was no reason suggested why the witnesses should have falsely tes.tified against the second accused. Kupewa knew the second accused before and Ibrahim was the ten-cells leader. The trial magistrate saw the witnesses and believed them. I see no reason .to disagree with the findings of the learneq trial magistrate. _The distance between the second accused's place of work and J<:URewa•s house may have been thir:ty .miles as the second accused said, but that cannot be a reason to ·disbelieve the witnesses. The-, theft took place between 8.11.1980 and 1.7.11.1980. The second accused sent the medicines to Kupewa on 29.11.1980. So t:he second accused had opportunity to travel to Kupewa•s house at Mikindani. The second accused was found in possession of the stolen properties al::>out two weeks after the theft. He gave no explanation at all on how he came to be in possession of the stolen properties so soon after the theft. His mere denial did not cast any doubt on the prosecution evidence against him. He was properly convicted., The sentence is the Minimum unger the lawo In .the re_sult, the appeal in respect of the first accused, Paulo Maliwata, .is all.owed. The conviction which is not supported by the -Republic .is quashed and the .sentence is set aside., The appe1.lant, Paulo Maliwata, is to be released from custody forthwith unless he is otherwise lawfully held. Tfle appeal in respect of the second accused, llichael Raisi, is dismissed in its ~ntirely. I ~1\ a,,·,"- Wo J., Maina, Judge MTWARA 25.10.1984