19830729 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM (CORAMI MUSTAFA 2 J.A., MWAKASENDO, -•3A. and MAKAP4E, J.A. ) CRIMINAL APPEAL NO. 66 OF 1980 BE T1EE N XAVERYMGAYA.00. ... 00 ...O.O.O.000APPELLANT

A N ID THEREPUBLIC .. ,.. ....RESPONDENT (Appeal from the.conviction of the High Court of Tanzania at Mtwara) (Maganga, J.) dated the 12th day of October, 1979, in Criminal Appeal No. 38 of 1979 JUDG?NT OF THE COURT MUSTAFA J.A.: The appellant and another person were jointly charged in a Magistrate's Court at Songea. The appellant was charged with st€aling certain motor vehicle parts from a Leylánd lorry belonging to the Republic while he was employed in the public service and the other person was charged with receiving the said stolen property. Both were acquitted by the trial magistrates The Republic appealed to the High Court, and Maganga, J. dismissed the Republic's appeal in regard to the other person and allowed the Republic's appeal in respect of the appellant. The appellant was convicted of stealing by a person employed in the public service contrary to sections 270 and 265 of the Penal Code, and was duly sentenced :' . :by the District Court to fIve years' imprison- ment. The appellant is now appealing. The evidence very briefly is that the appellant was at the material time employed as a foreman nechanic at Comworks Songea. .... /2 / 2 - The party who was found not guilty by both the District and High Courts was the owner of a Leyland lorry. In November,. 1974, a Leyland lorry belonging to the Prisons Department was taken to the Comworks Songea for repairs. The

prosecution case was that the appellant stole certain parts from the . Prisons Department Leyland lorry and handed them over to the other person, the owner of a Leyland lorry, and the stolen parts were fitted to the private Leyland lorry. The main prosecution witnesses to this transaction were P.W.9 and P.W.11. P.W.9 had been an employee of the private Leylnd lorry owner and saw the appellant handing over the parts to his employer. In fact P.W.9 alleged that he fitted the parts to his employer's Leyland lorry. P.W.11 also witnessed the transaction. At the time they gave evidence, both P.W.9 and P.W.11 were in prison. The trial magistrate, on the ground that both P.W.9 and P.W.11 were prisoners, viewed their evidence with great suspicion, but stated that if their evidence was corroborated he would have believed them. He did not find any corroboration. The High Court Judge correctly held that the evidence of both P.W,9 and P.W.11 should be taken with caution. There was evidence that both P.W.9 and P.W.11 did not know the appellant and had seen him the first time when the parts were being handed over. Both identified the appellant at identification parades. The High Court J.idge analysed the evidence and the circumstances and was satisfied that the appellant was guilty as charged. There was also corroboration of the evidence of P.W.9 and P.W.11 The stolen.parts of the prisons department lorry were fqund fitted in the private Leyland vehicle. Mr. El-Naamry for the appellant has attacked the credibility of both P.W.9 and P.W.11 in the appeal, but we find no substance in his submissions. 3 ( -3- There is no merit in the pp.al 1 which we dismiss in its entirety0 D4TED at DAR ES SALAAM this 29th day of July, 1983. ( A. MUSTAFA

JUSTICE OF APPEAL (YOM.M. MWAKASENDO)

JUSTICE OF APPEAL ( L. N. NAKAME )

JUSTICE OF APPEAL Lcertify that this is a true copy of the original. F /I A. A. V yimNDO, )

SENIOR DEPUTY REGISTRAR