19830221 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT BAR ES SALt.J.M HIGH COURT CRB HAL APPEAL NO.9 /79 OEIGINAI CRThUNAL CASE NO. 658178 OP THE DISTRICT COURT OP hIOR000RO DISTRICT AT MOR000R0 PETER BUIiOIE & ANOTHER ............ .,APPELLANT JiJDGEItENT MNZA1TAS, J.K. In this appeal the two appellants, Peter Bushoke and MiOhael Icuti,. 1st and 2nd appellaflts respectively, were jointly charged with stealing, conspiracy to defraud and stealing by clerks c/ss 265 2 271 and 306 of the Penal Code. The let appellant was also charged with fraudulent false accounting c/s 317(c) of the Penal Code. They were acquitted on the fourth count of stealing but oonvtoted of stealing by clerks and conspiracy to defraud 4 On the count of stealing by clerks the 1st appellant was sentenced to 4 years imprisonmsnt while the 2nd appellant was sentenced to 3 years imprisonment. As for the count of conap1raey to defraud the 1st appellant was sent to jail for two years imprisonment while the 2nd appellant was sentenced to one year imprisonment. In their long memoranda of appeal the appeliants argued that they were victims of circumstances as, they argued l the trial magistrate misdirected. himself on the evidence and on the law. In support of the convictions Miss Ngolo argued that there was ample evidence in support of the charges. On my perusal of the evidence tendered in Court and the learned trial magistrate's well

consIdered judgement I agree with the Republic argument that the evidence was clerly against the appellants. There was evidence,(exhibit pi), which showed that the accused overcharged freight charges. "Exhibit P1" showed that the oharges were shs,985/.v which money was paid by the M1nis try of Home Affairs but in "Exhibit P3" they showed to the iai1way's Cq,ration that they had received shs.374/30 only. They misa. ppropriated the difference, the subjeetmatter of the charge of stealing by óle.rka. There was also undisputed evidence that the contents of "ExhibitPi" were not entered in the cash-book registrar-Exhibit P5. This evidence supported tb the charge of false accounting with intend to defraud, The .evidnce of two prosecution witnesses (Wi and 11W4) supported the case for the pioseout.on. in respect of this charge all the more, 2/,..,.. 2 MI tiU etdee with other ilVegularitles it Vat aWtZig grOOVAR wh1h I reed not go into amply proved the gu.li of the appellants beyond eaobie doubt4 At , for the sentences lmpose4 sailed to 'nnd th natiOn exeoised by the iea'iad Resident stmtes ineoig the; 19t aaowed. to 4 years , orrnent where as te 2nd. Gt off with 3 years imprisoient onl. The evid.enae showed tat both accused were, but for thes girst offendam,The lawas set down by this Gourt Ln B __ Is 1196i) (.D 21,Q is that where oo'-accused one first tend.ox The tendes imped must be of the same seve4.ty4j That boig the aaw *he 8entenoe of 4 rears irnpxteonzuerxt impooed on the 1staeU4nt Is. to 3 yeara Im.prisonment only so as to. be in with t1IO pent4nob of iphQ 2nd appe1iant 11, the sQntenoeg to ua erifly as oe by the loweir, ourt. Apart m this vari•ation the app.a1e are 4$BI4S4 th. ezitaeiy. .R SAIAA ' 210t 19834, rjr