Matei Benedict Mselewa vs Republic (HC Criminal Appeal No. 206 of 1990) [1991] TZHC 2423 (6 September 1991)

. , IN T:::::Il IIGH COURT OF T}IZA.UIA AT MT.TA .. ~ .,:.PE.DLL.i.T:8 JU1I:JDICTION (:Mt:,ara Registry) . HIGH COURT C,'!U)JINJ.L APPE!Ji no. 206 OF 1950 -.:.i 001:TOLD rzn CRir'.1IKU, :J>PiL'J, 110.··,189/90 Origir.a.· .. Criminal Case No. 26 of 1950 of the DistJ j ;··; Court of Songea Diotrict at Songea l3ef o •J s :r.1.r,r.:r-1. Ntimizi Esq., Recident !•1a 6 :iistra ta. M.\TI J. BillIBDior M3ELEW'A • ••• • • • • • •.. : 1 APPBIJ.Jl.NT Versus . TL _WfJBLIC •••••••••••••o•••••••• 3PONDENT JUDGMENT. The appelJ'ants :Mate:i: :Benedict Mnelewa and Ireneus J.'ili.sgary w.ainba.no, hereinafter to be ref erred to as the first and second accused.a ar.e. appealing bef cx.:-e this court against conViction and sentence. Their, appeals have been consolidated. Tl.ie f irnt accused :Benedict Mselewa wao charged with five counts.· :011 the f:(tt·oount he was 'd1arged_ with_:stealing o/s .265 of the pna.l code.· ,.,. • • .i •. • • ' \ .. . ... ·: It vras allered that the accused charged between April, 1983 and 5th Ma.rob., 19df t.-Msiugo Village w:i;l;hin the District of Songea in Ruvuma Region, · · did steaJ. cq,eh shs.49,059/80 the property )f IvisLio DiVision residents uhich wcre contributions for the construction of Ra.nga. Secondary School. On the 2nd, 3rd,, 4th a;.1d 5th oount_s, the firsi; aed was charged,. · with stealing by servant c/s. 271 and 265 of the :penal code. It was aliaged , . . I that the aocused charged.between ..\pril, 15'00 and 5th March, 1989 at Msindo Rttl"a.l ._Qooperative Society within the District of Songea in Jmvuma. Region, being a ·person employed ·by Ms.;ndo Rural Co-operative 1'3ociety :. as a clerk ·a.1a.· steal 21,225 kgms of maize valued at shs. 191,025/=J 193 k@ns of sunflo•JTer (g:rade 1) valued at shs.2, 682/70; 28 kgms of sunflqwer (grade 111) vlued at shs.308/=; and cashs shs. 145,491/= the . . . ,,, property of his employer the said Msindo Rural Co-operati Jociety which came in•;o his possession by Virtue of hi,:i employment.

2 The sacond accuoed uc-,G charged with tlire:ie counts of stealing by servant o/s 271 and 265 of the penal code. (Tnese were 6th to 9th oots inclusive). It wa:J allec;ed tha·t; the a.ocusccl cnarged between April 1988 and 5th March, 1939 at E:a:1{:;l:', Rur·al Cooperative 8ooiety vtl thin the District , of Song-ca in Ruvuma Regicn did Gteal cash ·shs. 29,362/80; •• kgms of sunflo,-rer valued at sb',,,t633/c and 4,782 kt_., of' maize valued at shs. 43,oja/= the prc;?:.rty of hio employer tho said Hanga Rural Oo-op0rative Society t,:Uioh came into his poosession ·by virtue of his employment. The·· aoc,):1cd waG employed as a.'11 A'3sistant Clerk. The aocuseds pleaded not guilty >> the charges. 'The facts of ,;.'.1ii:: case in brfof were as fallows. -e first aocuse4, was employed by M;;L1do !ttiral Cooperative Society as a clerk. Hia · duty J·ras '' •, to buy produce froi, tha · ·p:.ia.i3ants for the society. Thus 'he used to get the money from Ru.vu.ina :Joo:porn:ti ve Union for buying crops. :a1.ving bought the. crops ho reports to R.CoU• so that a lor:cy is sent to' ferr,f the 'crops. ·. ; .. ,. ·, ,, __ In ·the 'vi:i;tages Yere uere godowns in which they had to . store the drops. they bey. It is _in eviclcnoe .that these gocJ.owns wre ·in ba~ condition and as suoh cropo "if£:ro not sup:i_Josecl' to be. stored - therein for ,{ 'long tim0. ' ' . , Somotime .Ln February 1989 tho Chairman of tho Jocioty beca.mo suspicions· that tho ·appollruits were IIiisllSing ·the Society's money. Thus · ·he~ PW.l called.a oom.nittcc meotingd;i-t .~ f~•resolved that th:c auditor ·be ·called '#~~~tt~~~~r,~~~•-j.:;, 1 T'uus P.W.4 was ordered to go· to ' . . , ~ . those socictjcs and he did the auditing. In his aiting P.W.4 olaimd that· ho d.isoo~-ered that the 1st accusod uas handed shs.93,065/85. which· were cohtrlbvticm by the :residents of i,isindv Division. The contributions wero for tho .construction of a secondary School in their area. How·ever during the a.udi ting, the 1st aocusG.d wa,s found ttl th shs. 44, 906/05. He fa.ilGd to acoot for sb.s •. 49,059/80. It was also discoverGd that the first ·o.oou:rnd bought 196144 kgms of maize. · He transported 170,l.90 kgms. and thll.s hll.d a loss of' 21,225 kgms. valued at shs.191 1 025/=• In·the godown tho·::-,) were: only 843 kgms of maize. P.W.4 stated that there was . ' . . . . . leakage. of 2% onlye Ee olaimcd tat however long the maize remains in the gd.oi-m-. ·the_ leakage could not <.:x:ceed 2f.,. ITe thus claims that the first acous9d.failod to aocount.fr the loss of kgms. 21,225 and tl,'lus . stole tho same. P ~.f o4 mmt furthe.r that ho found. that the first accused bought 1063 kgtns o:? sunflo:rter and tro.nsportod 87 3 kgms. Re wa.s suppor;;ed to have kgms. 190 in the godomi valued at 3hs.2, 682/70. . '

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3 . ~~c f'.irst accused ·failed.· to· o.;count for thfo imot :-,fi thuJ P. 1r.4 cl°aim.'J tfui,t he stole tho s~~~ It :-ras also sh01-m by P1-To4 that the'·. fi1--st ···acsed boht 96 lG:,-·:f u.nf'lom:1r (grade 1:1_1 )., There was no transportation. Houever only· 63 lG:,omG wei--c fou.1i i!1 the godom1.. The- first o.ccmed ·faded to account for 28 lG:_,cm:Jo and is thus llelioved .to- .·. have stolen tho same. Tho. prosecution 0vide11cc also did sou that the first accused ···iras • 4 • ~ given shs. 1 1 997,863/30 for the purchase of crops~ He only used ·sh~. 1,$52,372/80 in buying the crops. Re failed to acccunt_for shs. - 145,491/::::1 which P.W.4 believes the firot accuoe s+,(,l.o as the Game. was never used by tho· society in an,;r ma.t_ter. The auditor, P.w.·4 st2..ted that he clid al:-Jo inapF.,ct the books usod· by the second accused. He found tha. the FJecond acoused uas g:ivo:n a. total of shs.2,523 1 629/50 for the purchase of produce. ThJ sucond accused did use shs. 2,499,266/70 for the purchase of crops. T:i~ 110 was supposed to haw a balance of shso 29,362/800 Th~: soconJ· ac01_;_-ecl ·,.i-as ncj found 1-rith thio money nor could he giw any explanatior on :1ow tho same was us0d. · . . . . : ,:. . .' . . . Thus it is believed h0 stole the sameo P. -r.1- atatcd th2,t he discowrGd : that the 2nd accused bought 109,360 ½=ginG of ;:m,iz_e .and trans.ported only .. 92,370 - to RoCoU. ·: Thus '{e was spposcd -';o haw 3S'l0 kgms,., But after deducting lee ·of· 2% he iras· suppooed to h:1v~ 5~?-93 Q?,ms~ yalued at shs • _ 53, 932/ =• - The - second accused was nave;. found 1-ri t1. this. amount of · maizo and 'it ··1j believed he otole the same,- The second accused is also alleged to hc:;,vc bought 3,432-kgms., of ~~•1,'' ,• h7.°1J••,;i•••,• , . ·· · .... '.sunflo-t·rer. -In the godown PoWo4 found only 3031 kgmso The second e.ccusod .. ,-: . .. : - 1, .•: . ;• . '" '"' f°ailod to' ac·count for kgms. 351 valued at slls. 4$ 633/ =o The oecond accus0d failed to give an e:i .. 'J)lanation for this loss,., P.1·T.4 stated further that he di:::rnoveroc. that t'.::,e 1econd accused bought 55, 706 kgms of !Jaize. Ho transport0d to ~ C U ~ 49 1 720 kgms of maize. There were kgms 90 in the god0'rm i,!.len PaW<>4 a·.:.cU tod the books. When h0 took <ilut the leak<16e of 2%, he found a loss cf kgmso 4, 7_82 valued at sh. 43,038/= that the second a.ccu.scd faj_le1~ to account for 8l1d thus is b~lieved to b.ave stolen thG DamGa In his defence the first accused statod t!J2:.t he \TaS the clerk of Msindo Rural Cooporativc Society. ·nc admitted tb.2,t a lot of produce 1vas :t,oucb.t · in the season of 19(38/39 bu-£ the ·s3,T,10 vmP ;la.;;troyed after it _, .. ,,,, .-, -•.-,..; -t·, .r ~.,. ('1 .. ,f 1-·n.t

4 - a had. stayedto'Zf/ long pE.riod of about six months m. tb.out being transported to R. c.u. He stated that the godo1,ms 1-rcre in very bad cond.i tions and they ·,rere never supplied with aey ~~cider.; so aa to control the destruction by posts. T',1us hG stated th.at tho produce bought was destroyed by pests. He denied to have stolen a.11.y· produoeoe The first aoousod hoTTever failed to explain on the loss of shs.49,059/SO that was contribution for the c0notruction of tho Seco,1d.ary School and also shs. 145,000/ = that v;-u.s ilGVBr u,sed for the purchase of crops. T'.ae · second accu::..ed Gtated that it wc1s .true that they bought produce for the society and kept tho sa.me in the god01m •. These god.own~ were ner fated anc. thu.~ the produco boue;h.t was destroyed by pests. He olaimecl that the utnflo1-1or he bo1.l;;sht was sold. to U.W.T. but this was done af'tor P.W,4 had au,1ited his books. He denied however to have stolen~ produce the property of the society. W'i th abovo oVidence the first accused was found gufl ty. in_· t.p-e 1st, . 3rd, 4th and 5th counts and uas conVictcd and sentenced lto 6 years . . . imprisonmeut in tho first cou11t, and 3 years imprisnmont for each count in tho 3rd, 4th and 5th counts. The.second. accused was conVictcd in oounts six and 3 and wac sen tenoed to 6 years imprisonment and 3 . years imprisonment respectively. The two aooused.s are now appeal. It has .been established that the two accused were· employees @f Rural Cooperative Societies of Usindo and lianga rospoctively. · They had the· duty of buying produce after receiVing money from R.C.U. Ha.Ving bought tho procluce, they stored the same in· tho godowns. It has been proved that after they had bought the produce, they kept . the same in Jhe g'Q;.4-61'. ·. . ~ ·;,.~ • "j,"!" ... a :period of more than six months. P.i·T.4 claims that maize, e,t;~ ·m'..-the . '. ' .. goomi.'3 could only shrink to 2-'fa whatewr tho pcriodo With due respect · this can not bo true. It has boon proved that ·tho godowns nere in vor:,. · •' . ,• bad shape and as such crops stored therein uere d0otroy04 by pests,·rats· and some uore 1ften. Tho period of six months was too long to keep . . . the crops in a godovm that he.a nevar qeen :fum.gatod. The proseqution ca.n not ref'uto the -fact that rats did destroy the crops. I believe this included even tho sunflower. Th.0 uditor took only one fact of leakage and ho never considered tho fa.ct of shrink£!.go. If it is believed that - rats Qestroyed th crps, then it is not too far fetched to-state that evon tho loss of S'..l..'lflouer found was duo to this destruction. The prosecution has not cleared this faot that tho loss'yas due to the *va

; I ,,r.' ,,.. 5 _, mentioned .factors~ I thereforo find that there was not enough evidence to prow that the loao founll was due to tho :.:act that tb.e aocusods stole the produce~ I ·:tb.erefo!'EJI. allow tho appeals· for tho fi::st accused in counts three and. foUJ:'• For the second accused I allow lri.3 n,ppca.l in count eight. To . other coui1ts that is cou;.--1t 0110 and fiw; for tho first e.ccused 9 I fi11d that there was enoU3h evidence to prow tlJ.c offence 1Ii th -:-rich the n.ccus0.:.. was chare;-ed thus appocJ. a.3ainst conviction in these counts are dimnissed. To tho second accuaed. 1 his appeal against conViction in tho sixth count is dismissed as it has no merit. Tho appellants are also appealing against sentence. Taking into onsideration the Dmount that was stole and the sentence given, I find that tho said sentJnce 0021 not be said to have been cxcessiveo Raving said an above, saw for the counts in which the appeals have boen 2,llowed, tho appeals ih other counts and the sentence given is hereby dismissed. 6.9.91 Cora.ms S.J. la.wona P.R.M - EoJ, .. ~ S.J. Lawana .PoR.M •. - E.J. Appclln.nts1 Absent - Do not wish to appcaro For Republic:- Mr. E;yore, - State .Utorney - Present, ; rdc, Judgment deli ve:rcd. in open coUJ:'t in tho prescnoe of Mr. Izy-era -· Stato Attorney for Republic, this 6th dey of September, 1991. l wena P.R.M - E,J. . 6.9.91 \ \ ' ' \ \ \ " \ ' ...