19710317 TZHC Mwanza2

ANIA IN THE HIGH COURT Of TAHZ AT TVIWANZA.

APPELLATE JURISDICTION CRIMINAL APPIAL NO. 404 OP 1970. (Original Criminal Case 110. 1046 of 1969 of the District Court of Mwanza District at Nwanza. Before J. A. Mrosso Lsq; Resident Ivlagistrate). PIIILLIPOEi'HdANUEL ............................................. .APPELLA1'TT (Original Accused) versus THE UNITED REPUJ3LIC ............... ................ •.........RESPONDENT (Original Prosecutor) CHARGE: Stealing by servant c/ss 271 and 265 of the Penal Code. JUDGMENT. KISANGA AG. J. The appellant Phillipo Emmanuel was charged with and convicted of stealing by servant contrary to sections 271 and 265 of the Penal Code and was senterced to two years imprisonment plus 24 strokes of corporal-punishment. lie is now appealin agaiast conviction and sentence.' The case for the prosecution w,:.s tact at the material time the appellant was employed by TAPA and was posted as hec.d teacher at Lunana, TAPA Primary School. There was a system at that school .1 whereby the pupils worked for the farmers in payment of money which went into the school fund. In accordance with this sYstemnumber of farmers paid various sums of money for the labour rendered to them but the appellant misappropriated the money. P.V1.1 said that in September 1969 he paid Shs. 30/= to the apellant for the labour rendered by pupils of his school. P,W.2 said that he paid Shs. 140/= in two instalments; he paid the first

instalment of Shs. 65/= direct to the appellani and he paid the second instalment of Shs. 75/= to P.'J.3 1 another teacher at the school, who in turn handed the money to the appellent' P.W.5 said that he paid 5 hs. 15/= to the appellant and P.W.6 said that he paid Slis. 20/=.to the appellant. All these sums added together come to Shs. 205/=. The appellant in his evidence on oath said that all the farmers have not paid for the labour rendered to them by the school pupils. This was therefore a case in.waicii the decision depended entirely on the credibility of witnesses. The learned magistrate believed the prosecution witnesses and found that the appellant had received from them the aggregate sum of Shs. 205/= and accordingly-convicted-him of s.s..•.. 2 .......... \ealing this sum although he was charged with a single count of stealing Shs. 265/= , The appellant alleged that he was framed because there were misunderstandings between him and the members of the school committee, and the learned magistrate in his judgment found as a fact that the relations between the appellant and certain meaters of the schoolNere badly straind. The appellant further alleged that all the witnesses who gave evidence against him wore related to one another and thet P7V.4 and P.W.5 were brothers. In the light of these allegations, it was necessary to scrutinise carefully the evidence of P.W. 5 who

said that he paid Shs. 15/= to the appellant. This witness was a member of the school committee. Although the learned magistrate found that the relations between the appellant and certain members of the school committee were badly strained, he did not say which particular members of the committee he found were in bad terms with the appellant and which were not, and therefore it is possible that this witness could be one of the members who were in bad terms with the appellant. Again, . the appellant alleged that P. 1,1'1.5 was a brother of P.';1 . 4, the chairman of the school committee. Both P.W.4 and P,W.5 are shown to have a common surname s and there was abundant evidence of bad blood between P.4 and the appellant. It vies therefore possible that P1.4 and PVJ5 were brothers as alleged by the appellant and in such circumstances P.7I.5 might sympathise with his brother and give evidence against the appellant. Furthermore, it is noted that P,W.5 displosed the payment of Shs. 15/= to the appellant only during his cross-examination by the appellant, he had made no mention of it in his examination in chief To my mind, this casts a doubt on the genuineness of the alleged payment because one would expect the witness to have disclosed it to the police during the invstigation and the prosecution to. adduce it in court during the examination in chief of this witness. The fact that it

was not adduced, in the examination-in-chief would tend to suggest that the prosecution were not told about it and this, to my mind, weakens the truthfulness of the allegation. for these reasons I think that it would not be safe to hold that the allegod payment of Shs. 15/= to the appellant by P.W.5 was established beyond any reasonable doubt. P.W.l was another witness whose evidence also ought to have been scitinised closely although for a different reason. The appellant said that one farmer had paid to the school Shs. 50/= for the work provided by the school pupils and that P.W.l borrowed this money saying that he would refund it caid he produced a letter (defence Exhibit - c) containg the said promise to refund it. The appellant demanded repayment of this loan but P.W.l refused and quarrelled with him, and hence there was a misunderstanding' between him and the witness The learned trial magistrate didnot say whether he rejected the appellantts.allegation an .......S••S••••S•SS• SI _I • - ----. ,..__44 -..-, ••-••-,_ .••_,_._ S• .. , -. 4 •.....aee That therefore was another ground on which it could be said that the alleged theft o± Shs. 20/= was not proved. For the reasons as indicated above, I am of tiie view that it was not proved beyond any reasonable doubt tho.0 the appellant stole the aggregate sum of Shs. 205/=. Accordingly, the appeal is allowed, the conviction and sentence are sot aside and the appellant it to be released unless otherwise law±lly detained. Delivered in Court at Mwanza on 17th March, 1971. 72 (R. H. Kisanga) Ag. Judgc Ntabaye -. State Attorney, Mwana for the Republic. Accused absent - unrepresented.