19710911 TZCA Dar es Salaam

hepellate JurisdIction j CiU1l.lI7L iPIILAL 110. , 60 OP 1971 fr (Oripinal Crisiinol Case No. 191 of 1970 oil the district court e: ore D. J. Guibo Psq. , district 111 lsGrale). Of Irinpo liTflh TI TUS itlililiTA . ...APlELLANT (OTIi:IPAL ACCUSIID) versus TilE IPdPiJBIIC . • • . • • • • • • ,IIIISFODl 7 T(Olill.lITJ1 pPosllcUPoR) 0]I1I:IIGE:-' Stealinp by public servont c/so 270 and 265 01 the Panel Code,

JUUEST J0mITNAIT, Ag.J. The appellart, v;lao was he assistant superintendent ot police, was convicted on a chaxpe of stealinc; by public servant conleary to sections 270 end 265 oil the Penal Code and sentenced to threeyeo:o imprisonuent, without the statutory 24 strokes as he vice obove age. It was not disputed that, on 15/1/70 he was c;iven L.550/— by Superintendent iThina (P.1 1 .1) who viac then actint as the ilegional Police Commander, to pay as subsistence allowances to police aerde at the Pucl'ia Bridge. lie had then set off that day in a po1ic. vcl:icle driven by a police officer called Peter (P.11. 7). Uiortunataly, they found a brid:o at ilitonga havini been washed awayby floods making it impossible to cross tho river and continue the journey. They Pound other police officers t1ewe. One of these was a driver of the Regional Police Comiander rho h ad imu hia vebicle on the other side of the river he had then aied th i s driver to take the iaoriey to the Rualia guards, lie seems to hDve been reluctant and to consiec e 1 jJ fl rc ucot was aniline, appell ` i ~' he ou t money and the supporting voucher and shorai then to thai drive:'. That lid :i.ot help as the driver then claimed that his vehicle was out of order. PInt beng SO the appellant had put bick the money. Thcy iid then rotummac to Iringa where on the following day tile appellant claisied he had lost ties i:oncy

in a polic rein coat which also vine missing. The intended payecs did not tot their money. The account of the appellant shovied that he had act out wearing a police rain coat in a pocket of which he had put the money end the payment youcher. At Kitonga he had taken them out and shown theni to the driver of the-Regional Police Comiesader, lIe had then returned the money to the pocket, lie tried in vain to contact Superintendent Ithina by the nirelees set Pitted on to the vehicle and no sooner ]:d ho rrived boci:. then he rep,orted to him at his house. The vaicle had not token bin to Pis house because jt had had to be serviced in readineas for another trip that night which was imminent, and eventually he had be en tekeri back hone in a 'taxi. It would seem that he forgot the police ig in ©at with the money in the car, lie looked for the raincoat on tho ne;:: Oay but it could not he fcrnd while driver Daniel (P.i.l5) who hzdetokon control cii reier was of no a i.stance. lie had then immediately jeeuiorme d Sup eri hend eat lihina o ±ha.loaa in the preeaucc; of Kanuti, the otficer coiivamdinh the district the It uas/prosecutlOhIM case that the appellant had not reported the loan until he was asked five or six days- later folloainZ cociplaints 0± tiiC officers for whom the money was intended.. Supdt. llama v:as emphatic that :ppellaan had not reported the baa and that he did not

becomc• aware 0± it until he got report of the complaints through Senior In ector Khan 6) cix days later. Par their part, Senior Inspocdor Phan and Inspac or hilhinga (p... 16) were clear that, when asked by Supdt. llaian on 22,/1/70 the appellant had said that he had not reported carlicr boc USC he had hoped to get money and make good the loss. However, chia seems to have been contradicted by Kanuti whose evidence showed ths:i; ike appellant had reported the loss on the 16th. In dealing with this .:m;pai of the case y the learned trial magistrate does not appear to have cocatLc-ied, as indeed he should have dons, the evidence of ibim defence iritacec. The appellant had cross—examined Supdt. Lihina on a number of detaile. but he did not refer to him their maetig. vdth Kanuti whereat P22ina had told KamUti of a loss report by the appellant. If the evidence of Kanuti on `u- _Li!J_F, point was correct, then the appellant must have reported witlin iiouio of. the loss and ilij must in the circumstanceo have told a deliber.:ke lie. From the evidence of Senior Inspector Khan, it e.piDears there mae acmeting on 22/1170 comprising Khina, Kanuti, Khan and the appeblarrt and it is quite possible this a5 5 th meeting Kanuti referred to. Itsaeis from the record that the date —16th -. was mentioned by the appellant and that Kanuti had only to affirm it. In the absence of any assisting time

indicator, it is unlikely, that Kanuti could remember the date as at the time of giving evidencit was nearly six months later. The evidence, of Scrgehnt Llaj or i.imintali (P.10 14) would seem to be of assistance. lie had met the appellant on the 16th and asked hie if he was going to Ruabo that day. The appellant had replied that he had failed to get 'there on -the previous day on aQcouni of a bridge being vashed-aaay at Kitonga carT said that he would try it again on the fohloming clay' He had made no mention of -the loss of the money, as would normally have.bcon expected. Jhove all, it must have occurred to the magistrate as extremely irreaponoibbo of whjna to get report of loss of the allowances-badly needed by his junior officers and fail to taxe pranp'L action. It saeme thai, even if the trial mecistrate lead consicered the evidence of ifanuti on thic: point, he could not have come to a finding different from that he arrived at regarding the not tar whether or not -tile appellant had reported timely of ----- e loss. The trial ceovistrate seems to havo gone fully fano other circul- stances on which the prosecution relied -to prove ih&t 'the loss report ac false., Firstly, contrary to the appellantt s claim, his own driver, Peter, vms clear that he had left for dualla wearing a civilIan overcoat. MMMNF ,7,,t Mviamhapa (pr11) and Constable r_m ohacied (2.1,12) whom they

had cone across at the Kitonga impasse CoilfirSIed Peter' s evidence. All three witnesses acre also clear that the appllant had taken or the money from th back pocket o:[i his trousers and that he had rammed it to the awe place. The magistrate believed their evidence againat ha. t o:i: the appellant and found that he had not put the money in the pocket of any coat t all. It was not apparent that the witnesses could hevc gone out of lileir way to allege- isle ely against tile appellant and 11: illS tnt a perfectly entitled to find as ha did. In his statue-meat to Senior Inspector Khan nd alias in his own evidence, the appellant said that on his. re -turn from the UI1SCLCcCSSPU1 trip he 105 driven to the house of Idhina. This was dcn:Lod by lilhina himself while thc driver had no doubt tht he had taken the appellant to his house. This was one man' s word against that of other: but it SCESIIS the aagistrste had no difficulty,and I do pot think he erred ,in finding that the appellant had not reported to thins that night but that he had been driven iioic by Peter. At one ct2ge the appellant would apsear to have told C. lie to 1.lhan. ha scams that initially it had not been ntndod to charge the appellant and the appellant was ivon time to make refund. The appellant himself has said hc was given three days. By the 26th ho had not, in fact, paid up bt wile-n aske-d by IQietn and

Llillinpa he had replied that h hd given tile honey to Kanuti • Kanuti, however, refuted the- appellant' s claim. Fro-Y.1 the- foregoing, it seems the-ac- as plenty of cvido:.ce bIore tho magistrate pointing irresistibly to the appellant s hailt and/ai satisfied he was properly convicted. The sa-corandun of appeal does not- raise matters which were not belore, and considered by, the trial court. It may be added that, as regards two of the grounds of aaweal, the appellant seems o Co back on his own evidence. He is ow record as sayiws he that at !aitonpehc /ook out the money and showed it to f ho driver of the Ncgional Police Coiawaaaactcr , while ground No.5 of his appcai emaasts that ho did not do so. Similarly, he appears to have stated in evidence that although at Hit oiga he could not contact Uiwa on the air class, he stat eu in ground No.6 that 110 did so contact him In the result, the appeal 5rsinst the conviction is dismissed. In sentencing the appellant, the learned reagisimte considered that ho had cued :1:inaancial hardship to the intended roccipients of the allowances. Tht was so, but considering not only that the snatolen ewe not that alarmingly large but also the fabt that, following t11 conviction the appellant would almost certainly lose-cull such -teiminal benefits as his service of 22 years might have earned him, the sentence of three years j ii3pJThi TIL 1L61 CITio or .ICE cqxo UT )ATTeCE _., .iL6T/L/ . xinf • :v (uT3quO r •IT a) PeI3OTUSTP / L eu 'OOUS AS 'POTPUT P?O1T v flUOoSTJcIt;tT OU2 :o OOtXOLTS 1TL:TpIo00V OATS)OXC cq o to2: - )3l- .iqEqnE Si o:ot