19871002 TZHC Tabora

-..;__· .... ··- '·" . --·. •-H--=-·••, --- IN THB HIGH OOURI' OF T f/vT---·~ :rnz,na:1 ..£!T _!:\BOR!-i 1ff7' ELL.\ TE JURIS DI Gr ION (Tabora Registry) - (HO) CRIUilT:11 flITE.-\1 N0.53 OF 1987 1 ORIGIN.iiL CRI?lINi~L c. ~s·E NO .14 OF 1987 OF THE DIST'"")I~ i;0TJ~ (Y5' 9:1.TNY'\N'!\ i::ir·:rrRicr !'1T SEINJ.1NGil Before J .,M., IvIWEYUNGE Esqq SENIOR DISTRirJr M.AGISTRATE s t'i IVI'VEL s ELE'.L\ N sHUN r. '3 HU. 0 0 0 O • 0 0 0 ,. 0 • 0 f O O O ,.\ rr EL_Lti NT ( Orj_gj.nal _,\ cc used) Versus THE REFUB LI c. 0 0 O O • e • O t O O • ·• I • O O I I O II t ~t O •• • RES:PONDENT ( Original l:rosecutor) CR\RGE: - -- --- 1st Cournt for Ist. 1~ccused. stealing by rublj.c sevants c/s 270 and 265.of the ... 'Penal Codo Cap016 Volo1 of the .Laws. / 2nd Cournt for 2~-~~~2i• Receiving the stolen property c/s 311 (l) Cap.16 Vol~l of the Laws. --- JUDGMENT. OHI?Er ;\, J. ·,. The ap.Jl.ellanti S8fi1wE;l selemani shunashu, was charged with and convicted of the offence of st e.8.ling by public servant c/ss. 270 and 26 5 of the renal Code_and was sentenced to fj_ve years imprisonment. He was jointly trj.ed with one Francis Richard who faced the charge of receiving stolen property but was acqw.tted. The said.Francis RichartJ. was the second· accused at the trial, a description I will retain im this judgment. The appellant now appeals against both the convictj.on, and sentence. I ,. ., i - 2 - The _prosecution's evidence was th::1t at the material tj_me t.p.e appellant was employoo. by the Shinyanga Regional Trading Company._ herein aft er referred to as the Company, - a store-keep,T -,~·.:, the Com:oany's _q!'l,'!'.'3.fe~ .At one stage1 :-.'1. injector pump for one of the Comp::i.ny'i:3 motor vehj_cles was found to be defective and so was sent to MvvaL1za for repairs. It wns returned to Shinyanga on 6-th Ddcanber 9 1986 and was handed over to the ~PP ellant who put j_t in the store whose keys were in the appellant •s custody" dn 18th Dee!3Cllt'er 9 1986 9 a foreman of the Company, one Zacharia Amos (.i'.W,.l) went to check the appellant~s store and to 1?.W. l's surprise 9 the injector _pump was missing from the store. By t.n.en the apJell~int. was absent and had handed over the store to one Malugu (r.w.,4). P.w.4 denied hav~ng been handed )Ver any injector __0i.llilp by the appellant, and so the app e~-1::vLt became a prime sus_p ect. The matt er was then r9.Ported to the authod.ties. Du.ring the· srrnrn month, the app ell3nt and the second accused went t~ one James Simba (r.vv.5) who lives in . at _the tim.e and he and the second accused requested 'P.W.5 to ~e~p the box for them and promised. they would collect it ·later~ They _left it -there and later P.W.5 himself ·went on safari. Meanwhile9 on :1.nform3tion ractivea., one Lt. Mganilwa· (P.W.6) was approa0hed and was requested to go to the appellant and pose as a person int e:'.'est ed in buying an injector pump. 1 So on 31st January 9 1987, J?.W.6 .went· to the appellant and. found -the appellant in the company of the 2nd accused. The -::-.--~-:: .)E:l:.:i.:1i, :,id -~ .'.c :: .;,io.:;.:1 acoused said \ , that they had an :.'.n,iect.or ptrnp_, and after some·bargaining, ! • ' I - 3 - t·hey agreed to sell it to P ~ ;v . 6. for Shs.60, 000/= It was then agreed that P. w.6 would return there the fie-rl day to see the-injector pwnp~ P.W.6 was also assured that even if the appellant sho'uld be absent P.W.6 and the second accused could finalize the matter. On 2nd· FebruaryJI 1987 9 P .. W.6 went to see the appellant liJ-~ti~- found only the 2nd accused. As they had earlier agreed that the 2nd accused could finalize the transa·ction in the absence of the appellant, the second accused took Pe'N.6 to Upongoji area and showed him an injector pump wh±ch turned out to be the very one missing from the Company's storeo F.W.6 then .told the 2nd accused that he would go and r;iay the money to the 2r:..d accused at Nella Guest House,, so:'/ P~W. 6 and the 2nd accused hired a{\taxi ostensib:iy to go to Neila Guest. House. But on the way P.W.6-arrested the 2nd accused and directed ,he taxi driver to drive straight to the -Police- station where he was re-arrest ed. In his def ence 9 the appellant denied havLng taken the injector pump from the store or from anywhere else and described all the accusations a.1sainst him as a frame-up. But in his de~ enceg the second accused confirmed the prosecution 1 s evidence in 'every material particular: he said that the injector pump was brought by the appellant who wanted a IJ;Lace to keep the same 9 and that it was the appellant who told -P.W.6 that he was selling the injector pump at Shs.60, 000/=. . . I entirely and respectfullyagreeJ with the learned state attorney that the evidence against the appellant was incontrovertible. ~ome of the witnesses who testified against the appellant were coiii:r;lete strangers to him. No reason was gj_ven as to why tnesc, strangers would wish to frame him. Oh my own view of the evidence1 it is abundantly clear that the appellant wg s in ·custody of the injector pump at all material times, and he was fo.nnd j_n . • o/4 4 possession of the same outsi_de the Compny's'premises only days after it was found missing_from the store. A fortj.or~.1. .the appellant offer·ed the same for sale. The .conviction, there~ore, was riolnly ·deserved. As for the sentence9 the appellant cannot be Jheard to complain as it was J: 1.:c statutory minimum. In the result 1 t/J.s appealfail.e and so is hereby dismissed in its·.-•e.r1td:rcty; · m I /);'· / ' . ! '., {I I / . ' I · /1 '/ - ; . '/.' ' :' '' ' ',' B. 1J'.' CHIPfil' A, JUDGE.