Enock Maduhu vs Republic (HC Criminal Appeal No. 206 of 1977) [1978] TZHC 268 (1 April 1978)

• -'—. fli ;T MNZ PPhLLTE JUIflSDICT1ONN 'flIH COUiIT CiMINJL JPPiIL NO. :206 OF 1977 (Or iinaI:riminal Case No. 454 of 1976 of tho.JDistrict Court of Ma swa Distrct at tiaswa —: Befor C. M...Shilogi1e,..Esq.-, .3)istrict Magistrate) • S (Original ccusd) • . . . versus TH E REPUBLIC..... •0o•a ,.oso.•e••. . . • • •.. .•....... ... .•,.• .. . . . RESPONDENT (Original Prpse.cutor) CH4RGE: STFfJiING BY .SERVZ'NT c/ss 271 and 265 of the Penal Code Cap.16. • . . J U D G M E N T .. KLTITI, J. B, efore Maswastrict Court, were the appellant, and two others, chaged in the orderiof. 3r4, .st and 2nd acJc.useds respectively, with the offence ofstealing by sevant.c/ss271e 265 of the. : Panal Code Cap 16 of the.,Laws, consequent upon a.discoverei1Qss.of Shs..9,908/50, from Saka Saka Growers Cooperatiye Society.- The end of the trial, saw the appellant and.th.e 2nd accuseds recipientsof convictions, and fiye year imprisonment sentence each, accompanied by a compensation order, in respect of the sum involved,.ageinst both of them. The appellant has decided to appeal, aai t conviction, and such other orders, as are by law bound to follow or accompany the said conviction. Mr. Matemba the 1e.aned advocate, appearing for the appellant, submitted that:the prosecution's case, uffèred'from a fatal weakness,. through the twin engine, of failur.e to show when exactly the. loss or theft should have occurred., between 9/6/1976 and 23/9/ 1 97 6 , the period covered by the inspection that rvca1ed the loss, and the inability of the trial court, to consicicr with the necessary depth, the defence that the safe keys that the appellant iad, were over to the 1st accused, on 23/9/1976. A n d. in effect supplemcnting Mr. katemba's arguments, Mrs.- Matovu,.the 1earie .Co.unse1 fo' the 11eub.ic, s.Ubmittea that, the evidnco available, certainty as to whon and. by dhom tho money was stolen though the aim. of the Repub.ic, wa.s not easy to reach.She therefore found herself. unable, to s.up;ort. conviction and.hnco her prayer, that the conviction be quashed, sentence .et aside, and heve'the appellant set free., . . . . . . ., have therefore to emabark upon,. the exercise of examiningtbe testimony,. to see how justifie,wer. the above submissions, even if ..:the. Judgexit is mono.tpnously long... This exercisefirs± carries me to the ch3rge, that theRepublic prffere. and was trying to.prove.. in the lower: Court. I find myself, pervaded and, overwhelmed by. the worr.y,. that the particular.s of offence were far from being e -tisfactory.. The particulars of offence, that I consider are confusedly and messily worded, • . and demonstrative of the uncertainty, in the minds. of the. framer of the charge, as to who the, employer-was, are, to demonstrate my worry, as hereunder;— . . Particulars of offence:' . The persons charged,. on the 30th dy of September., 1976, at Saka Sake Gr6wers Society Ltd., within Maswa District,. in Shinyanga Region, the 1st accused being a person employed by'Saka Saka Growers Society, as a Secretary,. the 2nd accused being a person employed. by .Saka Saka Growers Society as a Committee member, and 3rd accused,. bein employed by Tanzania Cotton Authority, did jointly and together, steel cash shs..9,9 08 / ,the Eropp , rty f the said Sake Saka Growers Society, which came into their possession on accoüntof their employer. -. .,........./2..

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above pointed out, was that the appellant,, was handed over the key, by the .1st ac.cuse, iii.a way, that did ot guarantee dependable accountability. It is for' this:eson, that learnud Mr0 Matemba and Mrs. Matovu' s argumn.t,s w eLto me.,at.first magnetically attractive. But the circumsta- nces of the case; show that this satisfaction 'is bound to be ephemeral. First we can safely conclude, thatu the first accused handed no money to ac.cusedN o.2 and the appellant, to buy cotton with, as the appellant and the 2nd accused, began cotton business after receiving shs.16,0001= from PW5. In terms of paper accounts it may not be easy to' tell, when the Ehortage 'shoud have ocurred0 But as the appellant contends, that he handed over to the lst accused Sh.9959/45, almost the amount found short, on. 23/9/1976, Unless the first acOusod',' is endowed' with prognostic superiority the evidence on which we do not have' t itas impossible for him to know in advance, that a balance of that amount, would be handed over to him by the appellant, to be able to steal the equivalent amount 'in advande. There was therefore no theft between 9/9/1976:and.21/9/1976, when the key was handed oveto the appellant, and the conclusion, that the amount of shs.9,908/50 t''a' part'of shso16,000/= brought in by P115 was right0 And the issue as to thwo stolecn nly be answered, by identifying the prsonor pereons that had'safe k . e . ys . between 21/9/1976.,and 30/9/1976. :r. Matemba, has capitalised on the defence, that said that the 1st accused, was handed -the Iay on 23/9/1976, arguing th't if this was not the case, why should the 2nd accused hav id so I can understnd Mr lliaternba's lbour,end indeed he hs a responsibilitj from which he "- cannot abdicte, even if the odds were irnponder&1e I prefcr, unlike kr Mtemb, not to tko tne defence inisolation, but relate it to the c a s e as a whole In the dirst 01ce, never, would a fnding of fact that the 1st accused 1ft on 21/9/1976 for Sole, be challenged. The appellent, did tell the Court 'that: rhhandd the saf€ key "to the" f'iit iibc'used on 23/9/1 976, before he (the appellant) went for a Seminar, and has tenaciously sought, the support of the 2nd accused, whO, wps rady to render it. i'rid. indeed., the ppellan.t.di&...,g& -'fo uoh' Sethinar on 24/9/ 1 9761 as he boarded the bus 'together with PW4 who was going to give evidence at Kisesa Primary Courto PW4 told the Court that, the appellant came back on 29/9/1976, and resumed duty on 30/9/1976. If the appellant handed in the key, and in writing, he must have done so, on 23/9/1976, as he and 2nd accused claim or he wOnt with the keys. Did ho with the keys?, Did he hand them to the 1st accused on 2319/1 97 6 ? In the direction. of"the answer to these questions, the evidence of PW "J6sepW Mag;be cannot be irrelevant0 He said, that when he went to collct his' allowances from the Society, on the ?9/9/1976, he. was told by the 2zi&ae.used, in the presence of the 1st accs'ed that he (PW2) could not get his allowances, as the 3rd accused (appellant) had gone with one of the safe keys. Without a scintilla of evidence, that PW2 could be telling lies, as, even the appellant's cross-examination of the same witness was very thin,' it is indeed strange, that the 2nd accused should two days after the claimed key hand over, have said so, if indeed he had seen the appellant, hand the key to the 1st accused on the 23/9/1976. another relevant witness, that the appellant did not even cross examine, is PW3 who on 27/9/ 1 97 6 , could not take over, the safe-key from the 2nd accused, as it was his turn to do so, because, the appellant (Bwana Shamba) had the key. He testified as follows:- "On 27/9/1976 Yoram who was finishing his duty, was to hand over, the sfe key to me. The reason bein;; that one of the keys which used to stay with the Secretary, had been taken by the Bwana Shamba, and both were absent. Therefore Yoram continued to hold the key. !.nd failing to meet the 3rd accused who had the key of the 1st accused, I decided not be handed oer the key by Yor am. 11 00 o0..• 00

I t - The 2nd' accusCd's about turn and, the appàIlant shy examination or n 'e'xathination at all on the same, in the fa:ce of thO above enpolutq evdnde;'dai - on1ybe explainady inter personal (between 2nd accused and.appllant) arrangement, to betray the truth* further the safe keys, that the appellant had, were recovered from .the'1atine by'PW6, and PW1 Charles Kija a peasant, really a neutral

• '•• wi - tnes, who was about to sell his cotton thOreat, rellya nertra1 witness who was about to sail his cotton thereat, sOw the appellant enter the toilet, 'fter Which, the keys could be seOn therein, and were • 'indeOd subsequently rcovered and this accepted, as it suffere no incapacity, can only cement what-isi above reproduced, that the :oppeliant had the safe key all this time. • . . • . It. can only inevitably and irresistably boil down, thai since • the 1st accused could not have::prognotically known the amount that, the apeliant sars he handed over, Ond therefore steal a similar amount in advance, and it being obvious.from the above, that the claim by the • . appellant and the 2nd accused, that the appeliaxit handed the key on • . 23/9/ 1 976, is a contried lid as indeed it. wa the'.appellant who had had the safe key, to be able to throw it into the latrine, a conduct not easily explicable, and as the 1st accused Qould not get the safe • . contentswithout keys, the appellant was a party to the thOft of the amount charged.' I therefore l for the rescnsabeve,..find myself unablE to accept thésubmissions by the defence and theRepublic, butCnter a conviction fe'theftc/s265.of the Penal Code urder Setion18l of the Criminal Procedure Code Cap 20, as to sentence, the appei1ant knew, the • • money belongOd to a 'Specified !iuthority" and hehas to suffer the mandatory sentunce. The appeal is dismissed. Delivered thi • dayof Ljiri1i978. .•