Moedy Mohamed Muluba vs Republic (Criminal Appeal No. 261 of 1977) [1978] TZHC 176 (6 April 1978)

,. IN 1 TliE .H1:GI.f COURT OF TANZANIA AT DODOMA . . . APPELLATE JURISDICTION . ':l; · .. · . ''CRIMINAL APPEAL i'-IOo 261 OF 1977 ,· ... (ORIGINAL CRIMINAL CASE NO. 110· OF 1976 OF THE DISTRICT COURT OF MPWAPWA MOEDY MOHAMED MULUBA o o o o o ~ o o ··o o o o o .Appellant • (Original Accused) t . Versus • ..... • ........ - ..... -)1. THE REPUBLICo • • 0 0 o 0 O ~ 0 0 e O O 0 o o • Respondent (Ori·ginal Prosec\ltor) Charge: Stealing by Servant c/s 271 of the Penal C0de Cap. 16 Vol.l of the Revised Laws. JUDGMENT The appellant was convicted of stealing by servant and giv'·.n 12 months' imprisonment, and against the conviction he has petitioned this court. The prosecution case was that, the appellant as a cashier of TANESCO stationed at Mpwapwo. stole as much as shso 3,469/15. The e';idence in support of he charge was hrn'1ever very sketchy and it is not surprising the lower court convicted him of stealing shso 100/= only. As regards this, the prosecution evidence shows that, an elGctricity consumer, one Mrse Ko JAFFER, presumably o.w.2, after r,.:;ceivin0 the electricity bill for the month of August, 1976 arranged to pay. The appellant appGurs to have subsequently receiv,;;d payment in rcsp,,ct of the billo It ·was a bill for shso 164/50 •. He then .appears to hnvc issued a receipt for this amount and handed it to· the prson making th1:-1 paymento The duplicah reee1pt2. show«i however, thut he: rcceiVEd only the sum of shso 64/50, and this is the amount he accounted foro It was the prosecution case he stole· ·the• diffcrenc:·. It was the appellant's contention, on the other hand, that although the bill was for shso 164/50 :he received only shso 64/50 from the person ·_sE!nt by the .consumer. to make the payment, and that he duly rc!c12ipted for this amounto He dEmied writing the numeral 11 1 11 on the original receipt as a prefix to 11 64/50 11 • He was saying th<'.: altc,ration was made by som,-, other -person after he issued the: receipt. The evidenc0· ·of DW.2 ·shows that she had given her hcuscqoy the sum of shs., 164/50 with instructions to pay the mon,:.:y ·t:o· TANESCO and that he later handt::!d her the receipt for shs. 164/50. She was surprisf:!d, therefore, when she later receivd a bill for shs. 100/c for that month. The learn.id district magistrate in _his judgment found thn.t D.W.2 had paid the appelLmt the sum of shso 164/50 and that the latter had forged th,~ duplico.te receipt retain,-'d by ·TANESCOo It wcis a misdirection to say D.W.2 paid the money for, . she candidly s;,.id she had given it to h•c!r house-servant to make th(~ paymnt for h;,r.. The latter was, however, not called for the .court to be cLa,.lr if in fact h.:- had paid the whole sum to the appellant. It wus conc12ivu.ble for- that person to pay owir only part of the money given him and then to forge· the receipt given him by doing no more .,./2

2 • than wr11::ing the· numeral 11 111 to prefix "64/50 11 • The evidence, as rightly onceded by -the Republic, aibeit only on second thoughts, is incapable· of grounding thf.:i conviction that was rsturn!d und·, accordinly- 'it. is.- _hereby quashed and the senb:mce set -asi,dq~ . The appjillt should be set at liberty if there is no othqr lawful g_rourrct' for kG(=ping him in custody. ''• .· . · :, . :: Deliverc~ci in pp(:in :court this 6th day of April, 1_978. •. PoMo JONATHAN JUDGE I. . ... ',•; .. . /l . .,- .