N

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL N0.60 OF 1986 (ORlGINAL CRIMINAL CASE NO. 1102 OF 1983 OF THE DISTRICT . COURT OF !LALA DlSTRICT AT KIVUKONI Bef')re Chillonj i F.A.Ro Esq. D/Ma~istrate) The Republic: versus MOSES COSMAS ....................... . . . .. . .. ........... . ACCUSED "

JUDGMENT ~_!Q,_~~,.J. This is an appeal by the oirect~r ~f Public Pr'"'secutions. He is dissatisfied with the judgment of the djstrict e'"'urt, at Kivukoni• acquitting the resp~ndent M'"'ses c~smas. The appeal 1s br~ught and has been argued only ~nl~ ~ne substantjve ground. The respondent ~as brought to the district c0urt ~harged with stealing by agent contrary to section 273(b) ~f the Penal Code. It was alleged that during the m---n~h ~f January, 1983, at Kariak -.,-. in the City of DI Salaam he stole a sum '"'f .Shs. 2, 000/,,. in cash whkh had been entrusted to him by ~ne Chande Sajdj f "r h5.m t<l' retain 5n safe cust---dy. He denied the truth nf that charge. The prosecu ti'"ln called tw, witnesses, namely Charles Said~(pw.1.) and Boniface Kat,ande(pw. 2); and the resp--ndent gave evjdence in his defence. At the end the learned trjal magjstrate found the following facts proved. The resp~ndent and s--,njface were busjness partners dealing in foodstuff. They had s·--me s--rt --,f ar'rangement with Charles who was selling such g~ods at the Kariakoc Market in Dar es Salaam. The respondent• and Boniface would fetch the goods t·r . . m up-ctiuntry and bring them to Kariakoo and entrust them tr'\ Charles for him to sell and retain the prrx:eeds in safe cust~dy. Charles would receive what they call a erymmission. on 23/1/1983 the two. brnught p~tatoes fr---m Mbeya and gave the lot

to Charles wh" S"'ld the potat,.,,es in due c-~urse and earned a sum of shs.2,000/ee Thereafter the resp~ndent met with Charles and Charles handed· over the ml"lney t·· him, less his dues. The resp0nctent disappeared with the m---ney. When he was traced and apprehended he could n"t produce a cent, this was after a-~niface had lodged a complaint against hi~ to the Police. ~;, The·,learned mag:lstrate held that theft had been pr,:,ved and he was right. He, alsA_ held that the element 0f agency whkh is an assential ., I ingredient 6f the 1:ffence charged had not been established, again he was right. with'.tt\at·•ae dismissed the charge and acquitted the respondent • ., The Director of Pul,Uc Pr..,secuti.,ns has submitted that the learned