19750315 TZHC Mwanza

iii h.ICL JCIJET iF TAiTZ, Ai:;IA .thIDLATE JJflRIS:DICCIQN IIGH u)Fh C..I1 lITAL APPEAL • 448 OP 1974 Oriina1 Criminal Cane Lo. 119 of 1972 of the District Court of Bihar3inloDistictdtiharamu10 - Before :. Tegamaisho, Esq., Disrict :.iagistrte). - :.:IcILPAL PICA ]hCi;LI • • . • , • . • . • • • ./PPLIIiNT (Original .'.ccused) Versus - Tiil RPiJLIU • . . . . . . . . . . . . •. flToTJ)J1JT v (Original Prosecutor) * Stealing Ly $efvant c/ss. 271,and 265 of the Penal Code. J U D G D LI P N T :±GANGA, AG. J. The appellant was a TAI'TU branch ecretary at Duseresere in Biharamulo District and ho had several mor'"ri1ectors working under him. The money collected by the collectors t; be handed to the appellant who hod to endorde his signature on the last duplicate rocipt of the money collected. Ho had then to rinit. the same to the District Executive Cocretary who had to issue him with a Treasurer's Collectors' Receipt (TOE). On 27th Juno 1972 one Yohana Nathanal picked seven, NU C-RH books, used for collecting money by collectors, near the house of one Charles. At this time the appellant was in prison serving sentence in connection with another offence. The receipts were later handed to the TCC-TU Executive Cecretory who in turn handed them to a TAIU Regional Auditor Hr. Mgomba (D.W.9). Pr Mgomba checked the receipt books and found that a total of Chs. 2 2 468/= had been collectedon ti..em hu.'t had not been remitted to the District Executive Secretary. 'He prepared his report and handed the mutterover to the police who charged tlnu appellant with the theft of that money. The appellant's defence was that on his being convicted he handed over all the dccounts books to his successor s and there was no shortage detected then. He denied any knowledge of the receipt books as they had not been issued t o him. He also staed he was forced to sign the receipt books by the District Executive Secetry and the auditor Hr. Mugonba. He called one defence witness t that who deposed that he saw the appellant being forced tu sign on the receipts at the prison. The trial ma"istrute held that it was proved that the appellant received the money and failed to account for it, lIe therefore convicted the appellant as charge. There were several unsatisfactory features in the investigation and conduct of this case. It would appear from the evidence 'that the CRRts were being held by the collectors who bad only to have the last copy of the issued receipts endorsed by the appellant after remitting the collections to him. It is not clear: how be becaineconiected with docuthents which were not supposed to be in his custody. 1l±. PCgömba also adduced evidence that the amounts collected on those recets were never remitted to the TANU district office but he failCd to prOduce the relevant records for the inspection of the court. But most liaportantly, the appellant's claim that he was forced to sign for recipt of the money while he was in prison'soems to he supported by 1:1rj In cross—ecaminction he started "The fitht checking was made in the office in presence of accused. he later detected that accused had not signed for other books, Vic followed accused in prison on the same day for signature. Fomerly prior to that incident I had - checked the accused in his branch. I did not find him with any short. Accused signed the books From the above quoted portion of omba's evidence. that 'the appelThmt did not sign the receipts when he is alle.9d to have - 2 -- received the money ut a:i2tei the receipts had been picked up and at the insistunce of 2: ombu, It cannot under those circuLletunôes be said that it was roved Lh:U the appellant ieceived the caabunds shona on those receipts. This fact together with the luck of evidnce that the collectors handed the hooks to the appellant should have raised doubts on nhe minds of the magistrate on the appeilant t s guilt. As I ama of the vieW that the evidence before the court did not prove the charge against t}:.e appe1ian beyond reusoiuble doubt, - allow this appeal, quash the coinvictión and Set aside the sentence s well as the oruex for coupc r s tion. ihe ppellui U sac hd so released borthviaLh. L1L1COS he is ptherwise lawfully held. - - belivered this 15th day of iiareh,l975J - Ji.h. bAcc:\ \' l5 rc97 . C2 UIT uDC - -- Lhwarnyika for tine hepublic. - L S • • - t