19751016 TZHC Dodoma

liq TIIrj uIC ' M7M\TT) AT DODOMA , APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAT, No. 111 OF 1974 ORIGINAL CRIMINAL CASE No0 435 OF 1973 OF THE DISTRICT COURT n'' SIJrr,TnA AT SINGIDAO BEFORE: W.R. MRAMBA -. RESIDENT MAGISTRATE. YESAYA L. MNDANKA 0 0 APPELLANT versus THE REPUBLIC 0 0 0 0 0 0 0 0 0 RESPONDENT. CHARGE: 16 Counts of Fraudulent false accounting c/s 317(b) of the Penal Code s One count of Stealing by servant c/s 271 ai..d 265 of the Penal Code0 Cap.16 Vol.1. J U D G lvi E N T. MWESIUMO, Ag.J. The appellant Yesaya Lazaro Madanka w;is on 9th April, 1974, convicted by Singida District Court presided over by Mr0 W.R. Mrazriba, Resident Magistrate, of 16 counts of Fraudulent false accounting contrary to sectic:i. 317(b) and one count of stealing by servant contrary to section 271 and 265 of the' Penal Code and was sentenced to six months imprisonment on each of the 1st to the 16th counts and three years imprisonment on the 17th count and was ordered to refund the sum of shs. 2,500/- provenly stolen by him0 Aggrieved by that decision he now appeals to this court against both conviction and se:tence. Going through the record of the proceedings of the trial court one cannot escape an observation that the accounting system, if any at all, followed by the Singida Region Co-operative Union was the most chaotic I have come across in the the. proceedings of fraud cases0 Lack of proper recording and lack of checking of the revenue and expenditure unhappily characterized the mess in that Union0 The appellant was apprehanded merely because the Manager felt too much money was spent for buying revenue stamps and nothing else. There was no direct evidence of the theft of the 2,500/- shs. and the Prosecution wholly relied on circumstantial evidence which evidence did not form a chain that could be said to lead to no other except the conclusion that the appellant stole that money0 The chain of the said circumstantial evidence is so patchy that it cannot be safely said it can lead to an irresistable inference of the guilt of the accused in connection with the sum of shs. 2,500/- allegedly stolen by the appellant. As regards the 16 countr cf .rauriulent false accounting I have had the o.pportunity of perusing all the docu; -,,c.­.­ts refcrrcd to by the Prosecution before the trial court. the manner those books or documents of accounts were maintained by the said Union leaves too much to be desired. There were so many uncertainities that it could be hazardous to uphold the lower court°s decision. In a first appeal an appellant is entitled to have the aPPQn7l. courts own consideration and views of the evidence as a whole and its own decision thereon0 InH:his view I am fortified by the decision in 0 0 0 - - 2 - )- the case of Dirirrai Ram) rishan flandya. Vs0 R (1957) E.A. 336 as L have given earnest thought in this case/to whether it is one in which I ought to set aside the verdict of the court belOw notwithstanding the fact it had every advantage and, indeed, some advantages I do not enjoy at an appellate 'level, such as observation of demeanour of the witnesses. However, in fraud cases which mainly turn 6n the documentary exhibits this court as an appeal Court is just as competent if not more than the trial court to draw whatever inferences' can be drawn from such documentary evidence0 After due consideration, I have decided I do not regard this verdict of the trial court as safe and accordingly I shall allow the appeal and quash all the convitioñs and set aside the sentences imposed thereon and finally I would • rder an Immediate release of the appellant unless further detained for some Other known lawful cat'e. Delivered in open Court at Dodoma this 16th day of October, 1975 E.A. Mwesiumo Ag. Judge, ellant: Mr0 F.S. Charnbakare, Advocate.. For Respondent(, b1jc): Mr0 V.K.D. Lyimo, State Attorney.