19750820 TZHC Dodoma

2 / IN THE HIGH COURT OF TANZANIA AT DODONA .APPEJLATE JURISDIC TI 0I - HIGH COURT CR.IIINAL APEAL 86 OF 1974 ORIGINAL CRININAL CASE NO 330 OF 1973 THE DISTRIC.T CbURTO"MBEYA DISTRICT AT MRBYA BEFORE W.J'MAI-NA' •PR1 MAGISTRLTE / VERSUS THE REPTJELIC .................... ESPONDFNT 1st Count CHARGE Stealing by person employed in public service c/s 270 and 265 of the Penal Code Cap.16 of the Laws. 2nd count Store breaking and stealing c/s 296 (1) of the Penal Code Cap.16 of the Laws. J U DGMENT D.P. MAPIGANO, J. The appellant Shabani Chetebeja is a private in the Tanzania' Peoples' Defence Forces. He was tried together with ot'er four privates with (1) Stealing and (2) Store breaking and stealing. He was convicted on both counts while the others were all acquitted. He has appealed from the convictions and the resultant concurrent sentences of five years imprisonment which he received. He was stationed in Mbeya where the Tanzania Peoles' Defence Forces have two camps One within the town and the other at Mbalizi about ten miles from the town. There was a store within the Mbalizi camp in which sundry military wares and other equipments, including cloth, were stocked. The store was in the nature of a conduit for conveying these goods to the freedom fighters in the South. A record of every delivery was made in s. ledger whenever they were suprlied to the freOdom fighters. The goods were being donated by the O.A.U. Not surprisingly, the store at Mbalizi was under guard alliround the clock. One Corporal Elias (P1,19) was inchrge of that store. But when he proceeded on leave in February, 1973, he handed over the charge to the aprellant who was his assistant., The handing-over statement, ethibit C-, shows ex.ctly what goods were in there as of that day. Corporal Elias resumed duty on 20/4/73. He checked the store before taking over again. He found that twenty three bales of cloth were not only missing but were imaccourted for. According to him each bale was worth Shs.2,0001=. There was no record that they were issued to freedom fighters. The appellant pleaded ignorance as to what had hapreñed to those goods. Properly and promtl,Cororai Elias laid an information to =Captain Natiku (P1,12), his superior, and he declined to take over until the matter ws sorted out. Oaptain Matiku promised him that he would probe into the matter. Apparently, he hd not corple- ted his investigation when another incident took place on or about 28/5/73. By that time the appellant was still inch.rgc of the store. ....,/2 -2. In the morning of that day, Corporal Elias foun.d that the outer door was not secured He reported the matter to Captain Matiku who in turn reported to the police. The police called at the scene and examined the store. The appellant was present0 The doors leading to the inner room wher,ein the goods were kept were round locked and intact. The appellant supplied the keys for those doors which were opened and the goods therein checked in his presence. Thirty nine bales of cloth were missing. It is not clear from the evidence whether or not this figure included the twenty three bales which were earlier found missing. So the appellant and the four soldiers who had kept sentry over the store were suspected and investigation was mounted. Some of the stolen materials were found in the possession of two Indian Shopkeepers in Mbeya town, namely Jafer W6) and Remtulla (PW7). Two other residents of PTbeya, namely Masawe RW5) and Mwanshinga(P45) gave information about the stolen cloth.: This led to the rrest and impleading of the appellant, the four sentinels as well as P 14 4 and PW5. Subsequently however, the prosecutor withdrew from the prosecution of PW4 and P115 who were cordingly discharged. The particulars of the first count read that the offence took place between March and April, 1973, and that it involved eight bundles of cloth valued at shs.16,000/=. The learned trifi Magistrate, a Senior Resident Magistrate, reasonably thought that this theft had taken place when Corporal Elias ws on leave. According to Corporal Elias, there were twenty three bales each worth Shs.2,000/=, missing from the store when he checked the stock on 20/4/75. It is not clear whether the word "bundle" used in the particulars corresponds to the word "bale" used by corporal E.lias. Be that as it may, it would be clear from the evidence of Corporal Elias, which evidence was not in dispute, that the value of the cloth stolen was far in excess of Shs.16,000/= . But I will not pursue that point. If the evidence of Pi14, P146 and P147 is true, then it will not be open for me o question the conviction on the first count. The learned Magis.rate had no difficulty in holdingthat the evidence of these witnesses was tme. This finding is challenged by the appellant. PW4 Masawe was a businessman and he told the court that he was.t the bus stand when the appellant with two other persona apnro- ached him. That was in April, 1973. The appellant allegedly told him that their vehicle had broken down at a place called Mwanjelwa qnd asked to hire his peugot car to bring their goods from that / vehicle to town, for safe keeping . He agreed. He said that the appellant and his companions were all dres:ed in civilian clothes and that he did not now them before, but the evidence of Inspector Mshindo appears to show that he, PW4, had known that the appellant was a soldier. Oontinuing, PW4 alleged that he took the appellant and his companions to Mwanjelwa whore he found a Landrover which was loaded with goods. As the quantity of the said goods was much .arger than his peugot car could carry, he contacted PW5, a transporter, who agreed to hire out his peugot pick-up. The goods wore taken to town. PW5 confirmed that he took the goods from Mwanjolwa to town at the dLnstance of PW4, He delivered them to the shop of PW6 Jafor and received his reward of Shs.45/= from PhiJ4• But he could not be certain that the appellant was one of the three people who were with Pi14 on that occasion. Pw4 also alleged that he saw the appellant selling some of the cloths to PW6 Jafr for Shs. 3,600/=. I -3-. The evidrtèe of the two shopkeepers, 11 16 and PW7, was that the appellant called at their shops on••day in March or April, 1973 and told them that he was elling clothes. He shewed thorn some samples and they agreed to buy them P146 paid the appellant Shs 1,8001= for three bundles, while PW7 paid him, in the lresence of ii4 with whom he ws familiar, Shs, 3,600/= for five bundles. They did not get any receipt from the appellant. They had sold some of the materials when the police confronted thorn and s'ized from their shops the remaining lots - exhibits Al and A2. This happened towards the end of May, 1973. The appellant denied the allegations that he hired any vehicle and that he was the one who sold the clothes to the two shopkeepers. As already shown, the learned magistrate found that the eight bales were stolen between March and April, 1973. This finding was reasonable and it is not challenged. He was also of the view that P44 Macawe was an accomplice. I agree with that view. For if he was not an interested party, it does not make good sense why he should have met PW5's hire charge of shs.45/= on behalf of people who were allegedly strangers to him. Not only that. He was, according to P147, present when the appellant was selling the goods to him. It is not easy to understand why he should have followed the appellant all over the places, unless he Was intireatoly interested in the transaction. However, the learned magistrate was of the opinion that the evidence of the two shopkeepers, corroborated the eviderco of PW 4. But what he failed to consider is the possibility that the two shopkee'ers may have been accomplices also. This is one of the main grounds advanced, though inarticulately, by the petition of appeal. It is true, I think , that the circumstances in which the goods wor purchased by the shopkeepers attach some suspicion to the two shopkeepers. As shown, they were not issued with receipts àndthe:.a: evidence does not show that they vigorously demanded such receipts as alDOst all businessmen of their standing are wont to, especially when the person who sold the goods to them was allegedly a stranger, There is room to think that they know that the goods had been unlawfully obtained; or that they ought to have known that fact. I think therefore that their probity could he questionable, which thing would tend to undermine their credibility and consequently, the value of their evidence. The Republic contends that even if these shopkeepers were accomplices they would only h.we received the goods from a person or persons who had access to the store at Mbalizi cmp, in view of the fact that the store was under constant guard. There is merit in that contention and I agree with it. That consideration however leads to the question whether or not the appellant was the only person who had access to the store during the material period. It appears from the evidence that he was the only person. As already show, it was comi'on ground that the store Was under his charge during th time. He kept the keys. He normally locked those keys in a box at the Mbeya camp and he would only take then from there whenever he required them. If that evidence is believed, as it was, it removes any reason- able possibility that someone else could have had access to the goods in the stor. Tn ray . judgment, I have no good reason to differ with the trial Court's finding;that the appellant had exclusive access to te goods at that time. It must therefore have been the appellant who stole the goods from the store. The conviction on the first count is, in my opinion, sound and the appeal from it is therefore dismissed. h t; 'ae -' ; -ioing ... ............. 4 The second count concerns the theft which :ook elace after the theft which is subject matter of the first count. Thirty nine bales of cloth were found missing when the store was checked on 28/5/73. As remarked earlicr, it is not clear if this figure inclu- ded or ocluc3ed the twenty three bales which were found missing on 20/4/73. However, the particulars of the offence speak of fifteen bundles each worth Shs.2,0001= All the same, there can be no doubt that at least fifteen bundles were in fact stolen on this occasion. All of themwere not recovered. The evidence against the accused was the fact that it was he who had at the material time the exclusive access to the store and that whoever stole them from there must h-ve opened the door leading to the inner room wherein the goods were kept. This pointed irresitably to appellant. I would agree with the learned magistrate tiat it was the appellant who stole those goods, and that he must have committed the offence anytime after the 20th April, 1973, when Corporal Elias refused to take over the charge of the store, It may hvo been a - case of "as well be hanged for a sheop as for a lamb." Butfor all that, I cannot, on the evidence, h o sure that he boko into the store in order to steal those goods. It is possible that he stole the goods when he had entered the store l.wfully. It was in evidence that there were marks of motor tyres around the place. But it is not clear whether they were fresh or not. I would think therefore that the evidence did not establish the offence of store breaiing and steuling. But it establishsd the offence of stealing. 1 will therefore set aside the conviction and substitute one of stealing contrary to section 265 of the Penal Code. The sentence of five years imprisonm.3nt on the first count was mandatory and it must stand. A conviction for stealing under section 265 would also carry a minimum sentence of five years in,risonment, R5 according to t}. e evidence, the Government WaS special owner of •the stolen goods. In the result, save that 1conviction on the second count has been substituted with one for stealing under section 265, the appeal is entirely dismissed. Delivered. Mr. Kinabo for the Republic. Appellant absent (did not wish to appear) 20th August, 1975 D.P. M1PIGMQ, J