Mohamed Nurein vs Republic (High Court Appeal No. 151 of 1977; High Court Appeal No. 152 of 1977; High Court Appeal No. 69 of 1977) [1977] TZHC 534 (30 December 1977)

IN Thw lii(x11 (UUtU Of TANZANIA at Dar es Salaam APPELLATE JURISDICTION HIGH COURT APPEAL N0.69 OF 1977 c/F " •" 151 OF 1977 c/P " " " 152 OF 1977 Original Criminal Case No.253 of 1976 of the District Court of Dar es Salaam District at Kivukoni. Before: M.J. MSAKAMARIp Esq., Resident Magistrate. MOHAIVIED NtJREIN APPELLANT (Original Accused) versus f THE REPUBLIC .. ..... . ..... ..... .. •... •...•.. •..•••• RESPON])TT (Original Prosecutor) CHARGE: Stealing by servant c/s 271 and 265 of the Penal Code Cap..16. JUDGM.T KIMICHA, J.- This is an appeal against conviction and sentence. The three Appellants in this case were jointly convicted of stealing by servant c/s 271 and 265 of the Penal Code and sentenced to three years imprisonment each. The lower court ju.dgement is reproduced below for easy, referxe. JUDGMENT Josa Rusan.ya, Sainwel Mtobosya and Muhned Nurein are jointly and together charged with the offence of stealing by servant c/s 271 end 265 of the Penal Code. The particulars are that the persons charged on 20th day of March, 1976 at 19.15 hours at Wire Indus- tries Limited within Temeke employed by, wire Industr- ies Ltd. let accused as factory supervisor, 2nd accu- sod as factory clerk and 3rd accused as Sales clerk did jointly and together steal 30 sacks full of nails valued at shs.7040/60 the property of theiremployer which c ame in to their possession by, virt .0±' thei.i' employment. It is not disputed that the accused persons are working with the Wire Industries. Upon evidence given by the prosecution witnesses the court is. satis- fied 30 small bags containing nails were stolen from the Wire Industries on 25/3/76. Tha nails were pro- duced in Court as exhibit. Stealing was completed as taking had ôccured when nails were packed in the vehi- cle from the store to the gate of the factory. 6 • 6 ' 4 • 4/2

According to the evidence of PW.6 the General Manager, the value of the nails was shs.7,040/58 evidence which this cou:rt does not want to inter- fere with except to accept it, the charge sheet reeds shs.7,040/60 2 the court find.s that the pro—• secution took a round figure which this court con- siders that it was rightly done. The dispute is on whether the accused persons stole the nails. As submitted b.y Counsel for acöused No.1 and 2 it is thatthe case for the prosecution is dependen.t on the eviience of PWS1,. PVV.3 and PW.4. PW.1 said earlier at 6.00 p.m. he saw Josa Rusanya. the let accused and that he came in the VW TDII.He said that later on when him and PW.3 were passing near the factory he saw the vehicle again at about 7.15 pm. He said he saw the aCcused light the lights of the factory and: that the VW TDM enter the compound of the factory at the signal of the accused. Then he said he heard the gates f the place where nails werebeing kept being opened.. Then he said he saw nails being packed into the pick up. Then he knew that the nails were being stolen. Then he said he was with one Thomas Martin who went to phone the Police; In the meantime before the police had come PW1 said he wept the car near the gate from his watching point. He said. he wept and went to the vehicle at the gate. He said as the driver was wait- • ing far the others to come, smoking a cigarette PW.1 opened the door of the vehicle, switched it off. Then Josa Ru.sanya and Mohamed Hussein came out of the factory and wanted to take the switch from PW.l. PW.1 said he threw it. When accused No.1 and accused. No3 were looking for the switch Policemen came. Then the 1st accused, 3rd accused the driver and the watchment ran away.. When he was cross—examined he said he did not see the 2nd.accused and that he did not know how the 2nd accused got mixed up. When he was re—examined by the prosecutor PW.l said accused S No.1 keeps the keys full time. PW42 like PW.1 said they were passing near the factory and they watched the same vehicle which had come earlier being loaded with nails. He said the • place was very clear. He saw the 1st accused and 3rd accused loading nails. Mter suspecting a theft he went and phoned the 999. Whe the 999 came he took them to the factory only to find, the combi pick up loaded with nails at the gate and P 1 1.1 and other persons. The accused ones were not there. He said they looked for the keys of the vehicle and found it and took the exhibits to the Temeke Police Station. The next important is PW.4. He gave evidencCe that accused No.1 hired him at a rate of shs.65/— as he owned a combi motor vehicle No. TDM 815 pick up. He said they went to Temeke in a certain bar and took the 3rd accused. They drove to the factory. There he said they saw the watchman and the 2nd accu- sed. He said they drove an and the 2nd accused ope—, ned the door of the Godown and that the 2nd. and 3rd accused loaded 30 smaLl sacks full of nails. Then the second accused looked the door (gate). He said whei he was waitingat the gate his car was switched off by, a yOung man and Ignition keys taken from him. lifter struggling a bit he went to Chang'onibe Police Station and explained the matter. . . . . . . 9

On cross examination PN.4 said the watchman was also loading the nails. He said he jumped over a wall. When he was cross examined. by 2nd accused he said he knew him as they were loading the nails together and that they stayed together in the God.own and that lights were on. He said they stayed toge- ther for over 30 minutes. The accused persons after all evidence by the prosecution were called upon to answer the case. .iccused. No.1 said on Saturday 20/3/76 he left the factory at, 1.30 and did not return until 21/3/76 in the morn.ing when he came to open the factory' fot' overtime workers. He said he was.arrested on Sunday 21/3/76. He said he is the one who keeps the keys of the factory. He said he never stole on that day. On cross examination by the P.P. he said he saw the nails at Ohang' ombe Police Station. He said he had never quarelled. with PW.4. He said he had earlier, suspended Mohamed, iai PW.l for attempting.to steal. The 2nd accused person said on he went home at afterworking with some other people up to 6.00. p.m. He said he closed the factory and left. He said on 21/3/76 he went to the factory to work. Then the let accused came and opened the office, then at 11.00 he said he was arrested.. The 3rd accused in his defence contended that he was not on duty on 20/3/76 as the supervisor had given him off as his wife was sick. He said he went. to work on Monday and that at 3.30 p.m. he was arms- ted,. He contended that he does not keep the keys for any part of the building. He refused to have stolen. DW.4 said he knew PW.l and that at one time, at about December 1973 PW.l was suspended as he was sus pected of theft. On cross examination PW..4 said there was no sufficient evidence against him.. Each accused person after all that evidence this S . court finds is depending upon some sort of Laibi. on the material time.. Each accused person disclaims to have reached at the factory on the time of theft. No witness for the defence put it in court that he was outside Dar es Salaam on that time. With those views one cannot raise the, impossibility of going to the factory as a defence. Here are nails which were stolen from the Wire Industries. Here is the 2nd accused who closed the doors of the factory and, did not say where he sent the keys to. Here is the first accused who keeps the key's. There comes PW.1, 3 and 4 and PW.1 claimed to have seen accused No.1 at the place of the factory.. The evidence of PW.3 is the same as that of PW.1. PW.4 said he was hired by' accused No.1 and that him together with accused No.2 and 3 loaded the nails in the vehicle. Upon that evidence given by the prosecution the'd.efence must fail. J11 the submi- ssions of the defence Counsel must fail because there is ample evidence so considers this court that the accused persons were seen at the place in the actual act of committing the crime. PW.4 was actual with them at the time of commission of the crime. Aa.I have said that the accused persons say they ever went to the factory at the material time but not one said he was outside Dar es Salaam at that time. The defence fails because of ample eye witnesses who saw the accused persons doing the act. igd) M.J. 2 V V7 7

I 4/. I • I • I a S S S Mter reading the record and after considering the memorandum of appeal of accused 1 and 2 and after considering the submissions of accused three before this court, I am satisfied that there was sufficient evidence before the lower court justifying the convic- tion of all the three• appellants. Their appeal against conviction is therefore dismissed. With regard to sentence, I take into consideration that all the stolen property, was reQovez'1t the factory premises and that by reason of this cohv1oion the appellants have lost their employment. Their sentence is therefore reduced from one of three years' imprisonment each to one of two years' imprisonment each. JUDGE 26/12/77 Delivered in open court this 30th day of December, 1977. (M.P.-KIMIcHA) JUDGE S