19700617 TZHC Dar es salaam

Criminal Form No. 33 (Approvel by the High Court Judgment or Orde on Appeal (s. 320) nnc1r c-in 352 of the imn1 Prniiir (ni .. IN THE HIGH COURT OF TANZAMA AT DAR ES SALAAM APPELLATE JURISDICTION CRimmAL APPEAL No ........ ii. ........... OF 19.. 70 Original criminal Case No ............. 429 of 19. .of the District Court of District at ..................... DC1dom before ......... L..L...MIlShi,. .Esq., Resident MagistrateittietMtrat. Appellant ROBERT MAGANGA r (Original Accused) versus THE REPUBLIC .............................................................. ........................ Respondent (Original Prosecutor) CHARGE: 2 counts of stealing by person employed in the public service contrary to sections 270 and 265 of the Penal Code, Cap. 16, Vol. I of the Laws of Tanzania. JUDGMENTRDEJ MAKA}EE, Ag. J. - The appellant was convicted on two counts of stealing and sentenced to respective terms of three and two years' imprisonment. He was also awarded the statutory minimum of twenty four strokes of corporal punishment and ordered to refund to the Republic S. 389/90, which was among the monies he was found to have stolen. Mustafa J. (as he then was) admitted the appeal for hearing because the trial magistrate's record of the proceedins was rather illegible. After reading the appellant s frivolous petition and hearing the learned State Attorney for the Republic, I am satisfied that the only reason why the appeal was admitted was that the trial magistrate's handwriting was hard to decipher. P Dsm 10224/12.65180m/4up 2. There was uncontrovertible evidenoe that the appellant was responsible for collecting Goverwnent revenue and submitting it to P.W.3 Patel, the cashier, every day0 After satisfying himself that all was well Mr. Patel would sign against the relevant entries in the IevenueCoilector t s book as well a's on the back of the last receipt. Mr. Patel did not receive from the appellant the monies the appellant collected against receipts Nos. 22751 to 22766 totalling Shs. 662/- between 22nd and 25th April 1969, and S. 444/- the appellant collected against receipts Nos. 471561 to 471573 between 31st May and 2nd June 1969. On 2nd June 1969 P,VT.2 S. S. Sidhu, the Internal Revenue Officer, Dodoma, checked the appellant's books. He found that the monies collected against receipts Nos.22751 to 22766 had neither been recorded in the Revenue Collector's book nor accounted for. The appellant said he would refund the S. 662/- and this he did the following day. The appellant bad no satisfactory explanation to offer. Three days later P.W.5 Jeremiah Nrindiko, the head tax clerk in the Internal Revenue Office, checked the accounts of the appellant and round similar things regarding S. 444/-, monies collected on receipts Nos. 471561 to 471573. The appellant told him that the money was at home, but when they got there all that the appellant was able to produce was Sin. 54/10. In defence the appellant said he did not steal the Ste. 662/-. He gave it to Mr. Patel and he, the appellant, paid a similar sum to the Regiona.l Accountant merely because he did not wish to lose his job. He did not have the Ste. 444/- because it is that money he used to pay the Shs 662/- to the Regional Accountant. A s I have indicated, this appal is entirely without merit. There was clear documentary evidence that the appellant collected the money and failed to remit it in accordance with the regulations. The learned trial magistrate had before him enough evidence on which to convict, and I cannot find fault with his deiion. The fact that the appellant paid to the Internal 1evenue Officer Shs. 662/- does not alter the fact that he stole it. The law must take its coursett, asifustafa J. (as he then was) remarked in Dar es 3alaam Criminal Appeal No. 2717 of 1966, Qznari l4kindo v. t1çRenuc. The same applies to the Sts. 54/10 the appellant produced at his home. I acóordingly dismiss the appeal against conviction on both counts. Taking into consideration the fact that over 7O of' the money was recovered, and the fact that the appellant is a first offender, a substantive term of three years on a youth of twenty four may be harsh but it is not so manifestly excessive as to call for interference. .1 therefore dismiss the appeal against the sentences as well, and confirm the order for compensation. t. - 4- / 5. - With respect to the trial magistrate, and for future guidance, he should not have attached the twenty four strokes of corporal punishment to the first cot.t alone. Under the proisions of section 10 of the Corporal Punishment Ordixiance, Cap. 17, he should have passed one sentence of corporal punishment for the two counts. The end result will be the same. In future the magistrate should also remember to make a formal finding as to age before awarding a sentence in a case of this nature. The magistrate also itade no order regarding Exhibit 8, the Sis. 716/10 produced in court by P.W,1. I cure that by ordering that the money should be given to the Internal Revenue.Officer, Dodoina, to whom it rightly belongs. Delivered in Court at i)ar es Salaan this 17th day of June, 1970. (Sgd.) L. M. MAKAME. ACT 1NG JUDGE.