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•·, fflc ''i IN THE HIGH COURT OF TANZANIA AT TANGA APPELLATE JURISDICTION HIGH COURT CRIMIN.AL J\l>PEAL NO. 34 OF 1980 .I ' ·(Original Criminal Case No~·: ~4 of 1979 of the ) (District Court of Hruideni District at Ha.ndeni) • I Bef.ore: M.H. Brurari, Esq; !. D/Magistrc.te t ·.. YUSUFU SIJAONA ••••••••• APPELLANT .. · · : c, ( Orig.. accused) . ..,.:' Versus· THE REFUBLIC •••••• • •• iRESPONDENT · {Orig. Prosecutbi) .. J. !. ·; I .™GE: l.s't 1 2nd 1 4th .and 5th C,ounts: Fraudulent false acco,~tihg els 317" ~B) of the Penal Code Cap. 16 of the 1aw~~ 3rd ·and 6th Counts: &tea.ling by Public Servant Vs 270 of the Penal Code Cap. 16 . . of the laws~ "' JUDGEMENT Sisya, J:- This appellant, a former Police Constable with the Tanzania Police . i: . . Force, was charged with and convicted of six offences,-all under the • I • Oi ,. 0 Penal Code~ Four of the said six offences, i~-e~ in Counts l_,_ 2, 4 and 5 were of Fraudulent false accounting contrary to section 317 whereas . the remaining two were of Stealing by Public Servant contrary to sections • I . ,;; 265 and 270. On each of the Fraudulent false accounting counts he was sentenced to twelve months imprisorunent and he was sentenced to a . :.." \; substantive term of thre,i years imprisonment on the theft by public servant co~ts; Sentences on all_ counts to ran concurrently-:: ,, .'. E:yidence was adduqed at the trial to the effect tbat the appellant was,. throughout the relevant period, the onJ.y person who was receiV!big 1 revenue whicl;l, was paid in in the form of firearm licence fees: The _.,._. .,, •• IJ 1 . ,I JL 2 ... I ·tt:i . procedure as to how gove1nment revenue. used to•· be accounted. for in the . . . . . aistricts Which had no b:1nking ·facl.B. ties, Ha.nde?li be:i.hg o~e of them the?lil was narrated hii- Ha~i Waziri Ku.rwa, (pW3), then the I11ternal Revenue 0:tficer, _ li:1.ndeni, and Francis· Ml,Jwana (PW4) then~ a Senior Acc.ountant. _f,n .the }~i.nist:r:y of Hom~ :_AfJatrs :l.'leQI.dqu.arters;i This may be s ~ s e d a.s fbilows:;- On collection of government revetJ.ue the collecto,r would' f.ilJ. in {i> pay-:Ln;...s:J..ip: .tor:'. the ar.iount collected·: Together With: carbon copies, of ·t:rie ~c'e'iits on which the collections were made the-collector would then remit the money to the Internal (l.i .,_,,. Revenue Office:re ., Th~ latter ~v~1,1Jd rec~ive_ ·the money and then issue a che(!iie in :fav6ut 6f tte parent ministry in Dar-es-Salaam: The collector would take thE ch~qiTEf'Tina··rorwarded it to the ministry . - , ,· ..__ i. _._:• h~:S: ~ ,:_[ - , :headg_uarters- t:age-'bije·r·vq.·;h ·the-~/l'i;)!f::!'J;°\or original copy of the relevant ., . r, . . :~,. Revenue Colrectors Ca~h Book ( RCCB)°'t_'olio on Which a11 the receipts . .- . :: .· . .~: ·.. :-~.:.: . . .. ...~£!.~-:cr._t.--:. •~ssued when collec'ting '·flie revenue a.re shown by their numbers and amount az_id, also, to wh~.ch carbon copies of the said receipts are - attached: Ori receipt oi· the same the ministry headquarters issues a receipt the original cop:~ of ,;vh:.icl}..i,si'.~nt b'.ick to its office in the district; The revenue collector then pastes the said receipt on the relevant carbon 6opy of th-3 Reveriueta O:J'.l.eci~rs: Casr1Book foli.o Which ' . ' ' 'i,jj, ,' remains in t~e book·for accounting purposes. ~:n: th~ present case e·riderice was given :by PW4 to the effe~i; that . inve·s~tg~tions in the case ·commenced when 'the C 011t'fo1ler and Audi tor O.en.eral-.4uerried (:Per Exhibit "H") how the revenue collected on Revenue . Co:llectors Cash Book folios nos' 4-2704 and 42705 from Poiice, Handeni1 was accounted for by the headquarters~· ' Upon checking it was then foµnd that both folios -of· the RCCB ~der querry which were seri··tto the head oJfice · were not :11true 11 - copies ·of the· real copies but rather make- -:;;._ shift c.opies .. 'and·,·they were hand,vri tten ,;;. SEE EJdii bi ts •~·n and ''E 11 : Exhibit ·"D" 'shows·, that ..for thei•pei'iod 9/a/71 to 31/a/tl ~' t~tat-'"' .J I of Shs.' 4.53/80 were collected by the Police, Handeni, and the same was ~ccounted for by Float Fund ~heque iio. 23ll52 of 30/10/?i. Both cheques wefe suppose.dly issued by the ·Internal Revenue Office, Hand2ni:• ' ' ' Sub-Irlspector Vicent Ngereza (PW2) who investigated the case then went to the office of the Internal Revenue Officer and managed to ~ inspect and seize counter foils of cheques nos~' 231148 and 231152 (Exhibits iF 11 and "Gli, respectively) on which the cash collected oh 1 RCCB:folios nos~ 42704 and 42705 (Exhibits 'iJ) 11 and 1'E 11 respectively) was \ .'• allegedly accounted for by the Polic~, Handeni~ To his dismay Exhibit ''F" showed - and it st:i.11 does - that the cheque was for ,. ~j. Sha; 2, 403/= and not for Shs~· 429/ 4-o as shown on Exhibit 11D" and, further, the money was accounted for to the ;Principal Secretary, Kilimo, Dar..Bs-Salaam, and not to the Ministp~ of Home Affairs; Exhibit "G" showed that the cheque we.is for Shs~ 704/70 and not Shs~ 453/80 as shovm on Exhibit ''E" and the money was accounted for to the Director of Government Lotteries, Dar-Es-Sa1aain, and not to the Principal Secretary, '· Ministry of Home Affairs; It became clear, therefore, that the amount collected on Exhibits D and E had not been brought to account - 'jjj' on the cheques and dates as shown or at a11, Evidence was given by PWl who was the Officer ~in-charge commanding district Police, Handeni, w'"· the material time and under whom the appellant used to work to the effect that Exhibits ''D" and "E" were l<J written by the appellant, He did not see the appellant write the ,-\ ... · \~xhibi ts but he identified the writing because he was conversant In his defence at the trial the-appellant stated that there I were actually two civilian employee_s, one of whom was female, Who i.::i were collecting firearms licence fees. These were handing over the same to PWl who was the Warrant holder~; PWl was also the person who , was keeping all the books of account~' H'.e;· i.e~ appellant, himself was ~- •• / 4 . ·.{~1·.~· .,~' "t. .... "·.r 4 ... ;;;.·· ,_,,, ', only dealing with Police Uniforms~ In short the appellant denied I (, • the truth of the charge; impressed The learned trial l'&lgistrate was not by the appellant's ·denial. He wns satisfied that Exhibits D and E were sufficiently identified ·as h::i:ving been written by him; In his petition of appeal the appellant complains that the learned trial lVhgistrote us~d his own expertise in identifying the : ·) .. -, writing on Exhibits, D & E whereas no expert in hcmdwri ting wns called to give evidence in the case; ·\;': With respect 1 in finding 'tha t Exhibits D and · E were written by the appellant the learned trial Magistrate did not J:ely on his personal ,· .. .·, ; '•\ -. expertise in the· field of handwriting: He relied on the evidence of PW'.!. who, ~s'a.t'oresai:d, was the appellant_•s senior· and under whom he 1 u . appellant, Yvas working~\, Since PWJ. was conversant With the handwriting of the appellant he was competent k·1al to. ident~; the appellant's ·writing and testify. on· the same: . SEE Sectioll 49 of the Evidence Act, 1967:' The learned trial M:'lgistrate found ·pWJ.. to be an honest and truthful witness and I have no cause to disagree~' Like the learned trial M1gistrate, I ;,am also satisfied, therefor;, that the appell::mt '. ;)!'):; iS irtdeed 1 tl:re person Who wrote Exhibits D and E: ··The evidence Which stands undi~~ut~d shows that it is the first real copy 'of RCCB folio .nos;· 42704 and 42705 and the accompanying 0 ,- ·co pie~ of i ;receipts which ought to have been forwarded to the l)flrettt . . mihist:i-y; Th~ 'appellant has not attempted to offer any explanation as to what happened to_the said real copies and their accompaniments as .to warrant :hi~ making these makeshift copies: In the circumstances the o~y reasonable. inference is that he destroyed them; The position . ·:·r.i•..···. ;. would, perhaps, have be~n ctifferent had h~ alleged that he lost or This;· however, he did not do;: