19750500 TZHC Mwanza

1' :flT THT K1CTI COUl' 02 TJJTZANIA V AT NIM.L1. RIG-H COURT CRTi:flIL.T L1'FL.L ITo 545 OP 1974 Original Crininel Ceso Nc' 233 of 1972 of the Disric CLut of Shyan,a Dic rc et 31uinyngo before F.K. Mucoi, Esq. JVLr. PIUS s/c' 1TJTDL.. , . . . . 0. .LPPILLLNT . versus y ° aorvcntc/s 265 end 271 o ulac Penal Code - Car. 16 of the Laws.,. flT1Y.T TflWP KATITI, AG,J.: I0 :__Ip' ............ The appellant Pius NyafldT.vis'chargod with, tried and fini1 convictod of' the abov.o offiib'o b±daontenced to three years icairisoiincnt, the mininum sontnces for the said offence under the Minimum Sentences Act 1972. He was aggrieved by both convictiOn and sentence and seeks to said has appealed against the sane. The appellant was not present nor represented by advocate at the time of hearing on his own election. His grounds of appOal have however received the considcral;ion and scrutiny they deserve. The learned State Attorney Mr. Pinda suported conviction on behalf of the Republic for reasons that will heroin n.ppcar obvious. The facts are that the appellant was at the material tine employed as a Uard cccutive Officer• at Itilino in Shinyanga Region by Silinyanga District Council. His duties included the collection said accounting for, money from sales of dog bicycle discs, school fees and market fees. The bicycle discs were 'oo±ng sold at 5/= each. The prcodure involved was narrated by

P.7.1 and it appears tight for the purposes of financial control. The prosecution octailished that the appellant was given bicycle discs for sale and in my view this is true althoizgla the appellant had to add emphasis in his denial of the sane. According to Exhibit A and B dated 3/2/1972 the appellant collected bicycle discs numbers 189001-189500 over and above thoso that the j appellant ad,:ii -bs'to have had previously received from the District Council. He was required to account for the sales of the sane at the sane office. It was also cstablisacd by the prosecution, righbly accepted by the trial Court that 332 bicycle discs sale proceeds were not accounted for by the appellant. According to P.2.4 B.4337 Cpl. Thoobald the anpellant had oarlior told him that the said discs wore in tho safe at his station Itilina but when the said safe was inspoctod not a single disc was traced nor had the appellant remitted any amount of nonoy in respect of the sane. It is therefore clear that no money, no discs were found in the office nor on the person of the appellant. iathough the appellant' was charged with theft of the cash value of'the discs involved, he actually received discs and not cash. The prosecution's case was that the appellant stole the proceeds of the solo of tho said discs. In the relevant circumstances I would have 'boon, bOund to hold as did the learned Cross, J • in

ITCK BUT'TDJJ1L vs • R. (1968) ii • C • D • No. 54 that the prosecution was in the absence of any amendment of the charge bound by the Particulars of offence supporting the charge. This would, moan that as in the instant case the prosecution only talkod of procoods of sale of the questioned discs .1 would have been tenptod to say that the prosecution had not established its case as it has only boon proved that the discs were missing. But the spollant givosA helin, he icl and cojlI'lrnO the prosecution'S case that he in fact sold then end acCounted for the cone in the nomlcr roquirod. In this avant the ouost- ion whothr or. not the discs wore ever shid can no longer be ctoljstcolo. But as did the District Court, I aa sntisficd that t no rMitthnoo of i1 Otte wAsim6da by.the ac1lant Ls he cmld not froauco i, it rer'ains Lo 10 concluded dirt he nust have stolen the sane In this oven - b I have 1t to agreo \7ith the learned State kbtorney that the iirdsocution did establish its cao ojiist the opclJaru boyond roasonablo doubt. This ajpcal iusi be and 15 diorr-SaOd totlly. Dcli\'OrOd this day of May 1975. : •• ff1j.. ITI

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