19740726 TZHC Dodoma

F) 'H IN THE HIGH COURT OF TANZANIA

AT DODOMA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 71/74 Ct CR. APP, 41/74 and 47/74 ORIGINAL CRIMINAL CASE NO. 31 OF 1913

OF THE DISTRICT COURT OF MPWAPWA DISTRICT AT MPWAPWA Before J.W. Kayombo... .., .. . . •• .. 0 .,o..District Magistrate

JOACHIM EMMANUEL (original Accused) Versus THE REPU13LIC00 0000000000000000000000000000 to 00000.Respondent (Original Prosecutor: Chaj~g e! Stealing by Person in the Public Setvice c/s 270 o5i the Penal Code Cap, 16 Vol. I of the Law. :4 U D G N E N T MAPIGANO AG,J. These two appeals have been 'consolidated and heard together. The two appellants Joachim Eflmañuel. and Masudi Ally who were called the first and second accused at their trial, to which terminology I will hereafter adherei were jointly charged with four counts of stealing by public servant, contrary to section 270 and 265 of the Penal Code The first accused was convicted on the four counts and the second accused was convidted on one count only i0e. the fourth count, and acquitted on the rest. These appeals are against the convictions and the sentences0 Briefly, the trial court found the following facts as proved by the prosecution 0 That both accuseds were employees of the Tanzania Government, the first accused in the capacity of a mechanic with Comworks at Mpwapwa and the second accused in the capacity of a driver with Ujamaa and Ushirika department, also at Mpwapwa0 With regard to the first count which alleged that on 6/1/73 they had jointly stolen the tyre number N 3511-6-1341 9 the property of the Government, the court was satisfied that this tyre had been taken from the main Comworks store at Mpwapwa vide a

proper requisition document No. 151220 and was to be fitted on vehicle number ST 2772. That it was not fitted but instead was put in a small store to which the first accused had a key The trial court also found that this very tyre was traced in an abandoned house on 23/7/73 in the courSe of' a police search, These findings were based on the testimony of Mashaka Rathadhani (PW4) who alleged that he was also woi'king with doMworks Mpwapwa and that on 6/1/73 he had received the tyre for the purpose of fixing it on ST 2772 which had a worn out tyre. He had obtained the tyre from the store on the first accused's instructions and that he had signed the requisition No, 151220 for it. He also alleged that the first accused had later asked him to take the tyre into the small store within the comworks compound0 He took into there. He never saw it again. Anna (PW9) testified to confirm that she was a store clerk there and that she had issued PW4 with the tyre on the strength of the requisition0 It is true that the evidence of these two witnesses were largely and in substance not disputed and the accuseds did not say any—thing in respect of this tyre when they gave evidence in their defence. It was also not in dispute that the police, at the instance of Stephen (PW1) had endeavoured to shadow the first accused on 23/3/73 and acting on information they had • ø•o ./2 S S•O• .../2 -'received,

they had searched the houses of the two accuseds and discvered nothing material. They had however also searched the abandoned building and they had discovered that many tyres had been kept there, among which was this very tyre. The accuseds did not deny that this tyre was traced in that building 0 On this evidence the trial court held that i: t the second accused was not guilty on this count. I share that view for it is plain that there was no evidence whatever to implicate the second accused in the theft of this particular tyre. With regard to the first accused, It was held that having regard to the testimony tendered by the other withesses., it was con1uive that he had stolen the tyre. I will revert to this at a later stage. As regards the second count, it was alleged that the two accuseds had on 14/3/73 1 Jointly stolen one tyre number NGXE 63, valued at shs. 210/=, the property of the Government. It was establishe1 that this tyre had been issued to Musa Chimatu (PW2) and Raxnadhani. I'cuki (PW3) in order to fix it to a vehicle number GTD 5056 PW2 stated that the first accused had asked him to go to the main store to procure this tyre. He did so and by signing on a requisition No. 150922. He further stated that before he could fit it on the vehicle, the first accused approached him and asked him to take it to the small store to which he, the first accused, had the key. He

took it into there. The witnss never handled it again. It was also established that this is one of the tyres which were found in the abandoned building in course of the search - n 23/3/73. Again it is true as the trial magistrate observed, that the accuseds did not say anything of consequence to rebut the prosecution evidence on this count. As indicated at the ou€sc, the trial court acquitted the second accused on this count. Certainly there was no sufficient evidence to implicate him in the theft of this tyre. It however held that the first accused was guilty. It w.i be considered later wherher this decision was sound 0 With regard to the third count on which the second accused was also acquitted, the court believed that on 23/3/73 at the same place two tyres number N. 4204-6-2527 and number N 4207-6-1102 valued at s ShSr, i00/= and the property of the Government had been stolen. And that these tyres had been taken from the main store on 20/3/73 and kept by the first accused in the small store. They were not seen in there on the following day. The first accused did not in effect explain how the two tyres disappeared from the small store to which he kept: the key. There was sufficient evidence to support the magistratet s findine that the two tyres had been taken from the main store and then kept: in the small store at the behest of the first accused, Chimatu (Pw2) had

testified that it was the first accused who had sent him on 20/3/73 to fetch the tyres from the main store and that he had received them against requisition number 150987 which he signed. He stated, and this was not challd by the first accused, that he later took both tyres into the small store at the instance of the first accused. It is also clear that the two tyres were traced in the abandoned building on 23..'3/73. As shown, the second accused was also aquitted on this couni But acting on this evidence and the other evidence which I will refer to shortly hereafter, the trial court held that the guilt of the first accused had been proved beyond a reasonable doubt. With reqard to the fourth count, it was found by the trial court that on 23/3/73 the two accuseds jointly stole tyres number N 4206 6-2731 and number N 4205-6-3527 both the property of the Government The c'urt believed several witnesses some of whom had allegedly eyewit- nessed the accuseds loading tyres on a motor—vehicle which was later driven away from the Comworks yard by the second accused. Again the evidence as to how the tyres were obtained from the main store and how they ware taken into the small store is the same. It was not in dispute that the two tyres had been requisitioned from the main store and that they had been kept in the small store by Chimatu (PW2) acting on the f.rst accused's instructions. The

tyres were later on the same day to be discovered in the abandoned building. The trial court found that both accuseds had jointly stolen these tyres depite their denials that they had taken them out of the Cornwcrks yard as was alleged by several witnesses. 0 0 , 2 400*0o:c•/3 It appears that for a long time Stephen (Pwl) had suspected that the first accused had been causing to be requisitioned tyres from the main store ) that he had inste.d of fixing them onto vehicles, placed them in the small store from wher they had disappeared into thin air. He had on 23/3/73 reported the ma -- ter to the police who arranged a trap. It is in evidence that the second accused called at the Coznworks garage at 12.30 noon on that day. He wa:; then driving a vehicle GT 7817 and the first accused attended or pur)orted to attend him. He left at 12.30 noon only to return ther at about 3.30 p.m. Later when the other mechanice had left the ilace, PW1, saw the first accused ope74rlg the store and taking out tyres wh:ch he loaded onto the vehicle the second accused had come with. He also saw the first accused locking the store and then walking to the gate where he appeared to converse with the gate—keeper. At this stage PL rushed to the gate but the second accused had driven out of the compound without a check. He then rushed to where the police were standing in wait and informed them as to what had

taken place. The police pursued the vehicle but could not reach it However, after a shortwhile the s€.:ond accused drove back to the Comworks yard without any tyre. He was apprehended and questioned. He replied that he did not know anyth:Lrtg about the matter. He was arrested and his house as well as that of tie first accused searched. Nothing was discovered in there. The six zyres were later traced in the abando- nde building.. It is not clear to ihom this building belonged PW1's. testimony as to what happened on that evening was corroborated by George Nabonde (PtT5) and Seleman Kitenga .PW8), both of whom were at his house t the material time. It is also well to note what the gate keeper Epiphai Chali (PW6) testified in tiis regard. He said that he did not check the vehicle as the accuseds !!ad told him that it was only being tested and that it wOuld come back to the garage. He believed them. He also stated that he did not loo'.: into the vehicle because the first accused had asked him to fetch a register from the fiate office and that the vehicle was driven off and awa\ when he was proeeding there. It is also well to note what Constabl Leshe (PW1) who had been detailed to stand by in wait alleged. It i that on seeing the vehicle which was being driven by the second acci.sed leaving the gate he waved in order to stop it but in vain. And that he was sure he saw two tyres

in that vehicle. The accuseds denied he theft of the two tyres. The first accused stated that on that cay the second accused brought his vehicle for urgent repairs and he ked on it. He duly repaired the vehicle. Afterwards he saw the seond accused driving off through the gate after he had talked with the ate—keeper. Ten minutes later he found the second accused being queioned by police and PW1 in connection with tyres. He alleged that the wtchman at the gate was then contacted and that he agreed that he had checed the vehicle and had not seen any tyre in it. The second accused gave a parallel story denying that Constable Leshe had tried to stop Lrn leaving the gate. The trial court rejected the accuseds' versions and reached the conclusion on the strength of the evidence led by the prosecution that the accuseds had stolen the two tyres. With regard to counts ], 2, and 3 on which the first accused alone was convicted, it is ;ubmitted by Mr. Chambakare who argued the appeal on behalf of the first accused that the evidence was merely circumstantial and was not cnc1usive. He enlarged on this by pointing out that while it is true that the appellant had a key to the small store in which the tyres were kept after they were fetched from the main store, thisdoes not exclue the possibility of another person having had a duplicate of the key and therefore that the chances of that other

man opening the store and steeling the tyres were real. But as pointed out by the Republic this possibility is too remote to be entertained. The first accused him:elf did not raise this issue and there is nothing to sugest that he ever complained about any disappearance of the tyres which ha( been put into that store with his full knowledge. He just could not have been so naive. It is also submitted t:i-iat it was not established that the tyres were traced in the abandoned building which are subject matters of all the four counts, were the very ones which were taken from the m ••60Gc a ... . L/4 main store on various occasions as explained by. Chimatu (PW2) and &uki (PW3), and that there was no evidence to show that the tyres which were obtained from the main store by these witnesses had not been fitted on the vehicles f or which they had been earmarkedi It is true there was no evidence from any driver of these vehicles who was called by the prosecution in order o testify to that effect. However, it Is clear from the evidence that idendty of the tyres were established. from the vouchers orequisitions,which were produced from the main store0 The numbers and sIzes of the tyres which were traced in the abandoned building tallied with the numbers denoted on these requisitions. It is clear therefore that somehoW these tyres which had been kept in the small store by the first accused

did find their way to the abandoned building. The learned magistrate accepted the testimony. of PWlas to what happened on the evening of 23/3/73, ' He believed that, the two accuseds had taken two tyrs from the small store and that the second. accused had driven away from the Comworks compound with these tyres. It is now argued that PW1s story was too good to be true and that he was too anxious to catch a thief, and that there could be reasonable doubt as to whether he actually saw the accuseds taking the tyres. from the small store. It may be true that the witness was so anxious, but his story was amply corroborated by 'the evidence of otherthree1. withesses namely Geo.tge (PW5), Seleman (P148) and Constable Leshe (P141). The learned magistrate saw no reason to doubt their evidence and I 'am unable to see it either. The fact that the two tyres which were stolen on 23/3/73 were later on the same day found in the abandoned building together with other tyres which had been removed from the small store on previous occasions is very pointing.. All these tyres,:.as indicated herebefore, could not have been removed from the stork without the let of the first accused. On the. evidence it is undoubtedly clear that the first accused and the second accused did jointly, steal the tyres which are subject matter of the fourth count on 23/3/73. This strongly indicates that there was a

pattern in which the first accused was deeply involved, of stealing tyres from the Comworks and keeping them in the abandoned building which acted as a cache. What must have happened is that on each occasion a tyre or tyres were at the, instance of the first accused requisitioned and obtained from the main store. The storekeeper believed that the requisitiors were perfect and that the tyres would be fitted on the vehicles indicated in the requisitions: Each time the first accused instructed his juniors to take the tyres into the small store. He opened that store and locked it after the tyres had been kept there. On all occasions the first accused's juniors did not know what had happened with those tyres subsequently. On every occasion the tyres were however transferred from the small store to the cache in town. And the cache was discovered on 23/3/73. If therefore P141 was at all anxious about catching culprit, he cannot but be commended for it, for probability is that the first accused would have continued to indulge in this mischief further. To conclude, I find that there is no merit in the appeals against the convictions. The first accused received concurrent sentences of three yars imprisonment on each counts, while the second accused received three years imprisonment on the fourth count. That being proper I would dismiss these appeals in their entirety, and it is ordered accordingly. Judgment Pronounced. Mr. Kinabo for the Republic. Mr. Chambakare for the first accused. The second accused is absent and unrepresented. (according to hisown wish). 26th July, 1974. . AG. JUDGE