19770131 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA M'c ~~

AT ARUSHA HIGH COURT CRIMINAL APPEAL NO. 87 OF 1 975 ORIGINAL CRIMINAL CASE NO. 184 OP 1974

OF THE DISTRICT COURT OF HANDENI DISTRICT AT HANDENII Before A. B. Lu.gendo, Esq., District Magistrate YtJ SUFU NOUM'IED .. .. .. Appe llat (Original Accused) versus THE REPUBLIC .. .. ,. Respondent '(Original Prosecutor) . CHARGE: Stealing by Servant contrary to section 271 S : and 265 of the Penal Code.

JUDGMENT BIRON, J. - The appellant who was charged with stealing as a servant i'thilct his co-accused was charged with simple theft, were together convicted of stealing six bags of beans, the property of the Chanika Mganibo Co-operative Society., hereinafter 'referred to as the Society. The first accused ol was sentenced to imprionment for four years and his co-accused, who has not appealed, was sentenced to imprisonment for three years. In this' judgment, for the sake of • convenience, I am retaining the descriptions of the two accused as they were described at the trial, the appellant being the first accused. It was established in evidaice not disputed that sometime on the 26th November, 1974, siZ bass of beans were stolen from the store of the Sb t iety where the first accused was employed as the store1eeer. 13iere were no signs of the building having been broke]1 imto, %12us indicating that entry to the store was probably effecit'ed by opening the main door of the Society building with a key.' 0/2 - 2 - I propose to examine the evidence in chronological sequence. Evidence was given by Omari Juma Mduinbe, (PW.3), the secretary of the Society, and Issa Shemlughu, (P.W.4) who was employed as depot supervisor of the Society, to the effect that either of them would take the key of the main door of the Society building home with him after work, depending on who left later. The

two witnesses stated that on the 29th of November Omari Juma Mdumbe left the Society at about 3,00 p.m. handing over the keys including that of the main door, to Issa Shemlughu, who had some work to do at the office, therefore he stayed on. Issa Shemlughu stated that when he left at about 4.00 p.m. the first accused was still working arranging bags of produce in the store, and he left the keys of the office with the first accused telling him to deliver them to his house when he left the building. The story is then taken up by William Manf red Mhando (P.w,i) who was employed as the watchman by the Society. He testified that he reported for duty on the 26th November, 1974 at about 4.00 P.M. He noticed that the main door of the building was still open and the first accused was inside the building. Soon after his arrival the first accused left locking the main - door behind him. At the same time he noticed the second accused who joined the first accused, and the second accused asked him whether he was going for militia training that afternoon, and he replied that he was. .Then the two accused left together going in the direction of the town. And the first accused told him that he wa going for militia training. The witness became suspiciour on a'ccount of the second accused having asked him whether he was going for militia training that afternoon or everng, .13 His suspicions were

strengthened when he went to the ground where the training was going on, and noticed that the first accused was not present, although he had.said that he was going there. The witness accordingly asked to be excused and went back to the Society building. Approaching the building he saw the second accused coming from the direction of the building going towards his own house which is nearby, carrying a bag of beans. He raised the alarm people gathered and the second accused was apprehended. On going to the second accused's house they found two more bags, which the witness, as well as other witnesses identified as emanating from the store of the Society. The bags worp identified by the several witnesses because they were sewn up with a special thread. Zai-nabu Ibrahim (P.w.6), the wife of Omari Mdumbe (P.W.3), testified that on that same day the 26th of November, at about 5.00 p... the first accused came to their house and left with her the keys of the Society building, asking her to hand them to her husband who was out, on his return. Pausing there to summanise the sequence of events according to these witnesses; Omari Juma Mdumbe (P.W.3), when he left the Society offices at about .3.00 P.M. left the keys of the building with Issa Shemlughu, (P.W.4), who remained working. And he, when he left, lft the keys with the first accused telling him to deliver them at his house. However,

instead of delivering .;bem at the house of Issa Sheinlughu (P.w.4), the first iccused delivered them at the house of Oman Juma Mduinbe, lea :ng them with his wife Zainabu Ibrahim (P.W.6). As stated, it was apparent that the Society building had n&t been broken into, thus indicating that the uilding must have been entered in the normal way, that i by the main doer, the key of which had been left with the first accused -4- The first accused when he left was seen together with the second accused by the watchman William Nanfred iVihando (P.w.1), and he told the watchman that he was going for militia training, but as was established in evidence, the first accis ed did not turn up &t the training ground. Explaining his absence in his defence, the first accused said that he did not go because his children were sick. He denied not only having returned to the society office after leaving, but asserted that the keys were not left with him, but that the building was locked by Issa Shemlughu, (Pw.4. -He asserted that all the witnesses, Issa Shemlughu, the watchman William Manf red Mhp,ndo (P.w.i) and Zainabu Ibrahim (P.11.6) the wife of Omari Juma Ndumbe (P.W.3), were all lying in their testimonies given in court..- However, in cross-examination he could not advance any reason why these three persons should lie against him, admitting that none of them was an enemy of his. The second

accused in his defence denied that he was seen carrying a bag of beans. The three bags of beans found in his house were his, he having bought the beans in small quantities and after having accumulated his purchases, he had bagged them and had sewn up the bags with thread he had obtained from other bi€s belonging to the Societyalthou, as he himself admitted, he had no permit to buy produce. On my vi.ew of the evidence, which incidentally, is not shared by leaned State Attorney who does not support the conviction, the evIdence establishes the guilt of the first bccused beyond aiiy doubt. - With retard to tho sentence, tho learned magistrate in sentencing the two accused, directed himself that as the the first vccuse4. was the ringleadelr he deserved a stiffer sentence than iiis coUeague who as 1cted was sentenced to PF imprisonment for three years, which is the minimum as laid down in the Minimum Sentences Act, 1.972o However, as constantly reiterated the minimum sentence is not necessarily the standard one, and in the case of the first accused the offence was aggravated in that he was employed as a storekeper, yet he stole from the very store he was employed to work in and look after. I am therefore very far fror persuaded that this Court would be justified ininterfering with the sentence imposed by the learned magistrate. The appeal is accordingly dismissed in its entirety.. Delivered in Court at Dar es Salaam this 3.1 at day of January, 1977. ,,.. (PHILIP BIRON) JtJDGE January, 1977 4