19710820 TZHC Arusha

IN THE HIGH COURT OF TANZANIA JtL APPELI.UTE JURISDICTIO1\T 0 HIGH COURT CRIMINAL APPEAL NO, 228 OF 197L ORIGINAL CRIMINAL CASE NO. 99 OF 1970, OF THEr DISTR'ICT COIJRT OF MBULU DISTRICT AT MBUITJ, BEFORE: L. A0 L. MGONJA, ESfl; DISTRICT MJ.GISTRATE, RAMADHANI s/o BAXARI: OOOOOOOOOOOOOOOOOO OOOOOAPPELLANT (OPIGII ACCUSED)

VERSUS THE REPUBLIC : 0 0 0 00 o 0 oORESPONDENT (ORIGINAL PROSECUTOR) CHARGE: 1st Count: Forge•ry../s 335(u) and 337 of Penal Code, 2nd Count: Stealing by Servant c/s 271 and 265 of Penal Code, LJ BRAMBLE, J. These are appeals against conviction and sehtence on - two counts of foTgery c/s 335 (11) and 337 and Steeling c/s 271 and 265 of the Penal Code 0 The .aticulars of the coi.t for stealing alleged that the ppe11ant was a person employed in Public Seivice and between th. 5th August, 1969 and 4th September, 1969 while employed as Tan-u Branch Secretary he stole a total sum of Shs. 4083/,the property of TANU, which came into his, possession by virtue of his employment. There was evidence that the appellant collected diffeent sums from the estates at Oldeani as-thier contributions to the TPNU Building Fund,- Receipts were produced in some case and the"orne of, the' per,ons paying said that they knew the appellant and saw him writing the receipts, In particular there is receipt Nol 386786 dated 5th August', 1969 and re.eip,t , 38.6,58 dated 3rd September, 1969, 'p\1 '10 was 'acquainted with the handwriting of' the appellant becausehe useto corrsp.ond with him and identified receipt No, 36783' dated 4thAugiist, 169, as having being issued by him to the Manager of the Sunnil Estate, who wes then dead, Samples of the ae11ant handwriting were taken by the police but the handwriting

expe.t said that these samples were deliberately varied so that no real 'comparisbn could he made, Having regard to the positive evidence of the witnesses relative to the receipts mentioned above there was proof enough that the appellant received money and issued them, S 4 IL ( - - The ground of appeel on this couit was that no evidence was adduced by the prosecution indicating that the T1'T'TU office at bu1u did not receive the said monies, The only evidence on the point was that given by the investigating officer, PW 1 who said that the appellant had norreniitted the monies in question0 This fact he could gather only frog enquiries and it was not the best evidence; it was hearsay and in.dmissible0 There was then no evidence on the point, The appellant was called upon to answer the charge and his evidence filled the gap in the prosecution case, The defence was that the money had been stolen by several collectors and that all the witnesses were testifying against him 'because he had quarelled with most of them and they wished to destroy him. He denied that he had issued the receipts mentioned above or received money, Not having received the monies in question he impliedly could not and did not remit sny, The whole mttn depended on the credibility of the witnesses0 There was nothing suggested in cross-examination to throw doubt on any of the witnesses for the prosecution and the

trial magistrate was justified in accepting their evidence. I see no grounds to interfere with the conviction or the sentence, whic -i is the minimum, and the appeal in the c1- arge for the stealing is dismissed0 The particulars on the Forgery Count alleged that between 5th August, 1969, and 3rd September, 1969 the appellant with intencr to defraud did forge G,fl,R0No, 386784, No386786, No, .386789 and 386793, The originals of these receipts showed that large sums had been received but each duplicate showed Shs, 3/= only 0 The handwriting expert, PW, 1,: exp'ëssed the opinion that the same person who wrote the originals wrote the duplicates but he used some trick to prevent any indentation on the duplicate0 As indicated above the evidence of PW. who said that the appellant wrote receipt No, 386786 in his presence, established the appellant as the writer of the original receipts and of the duplicates0 By putting a smaller sum on the duplicates and by the failure, to remit to the proper authority the sum received there was clear proof of an intent to defraud and forgery was established,. The appellant s defence was that he did nOt agree with the opinion of the handwriting expert and that hO had not issued the receipts in question Again it WBS s qUestion of fact and there is ample evidence to support the conviction. The sentence of nine months imprisonment is not excessive and the appeal is dismissed, Delivered in Court at Irusha the 20th day of August, 1971. (C. F. BRAMBLE) J U D G E.