Rashid Amad vs United Republic (High Court Criminal Appeal No. 72 of 1990) [1990] TZHC 86 (10 October 1990)

f· .. ~ i: r It i · IN THE HIGH. CCURT pt TANZIIA AT ;DAR ES SALAAM APFELLt.TE JURISDICTION i HIGH OURT CRJMINAL APPEAL O. 12 OF 1990 (From original criminal Case No. 260 of' 1989 of the District Court of Ilala District at Kivukoni) RASHID AMAD •••••••••••••••••-•••••• APPELLANT (Original Accused) Versus THE UNITED REPUBLIC • • • • e O • 0 0 • e • • • • • a • e RESPONDENT (Original Prosecutor) 'JUDGMENT MSUMI, J. The District Court of llala at Kivukoni street, Dar es Salaam convicted the appellant of stealing by public servant Contrary to section 271 of the penal Code. He was sentenced to a term of four years imprisonment. Disatisfied with both conviction and sentence, appellant has decided to file· this appeal• It is on record that appellant was employed by the co1t1plairtant as a shop attendant. He was selling some building materials, including cement and corrugated iron sheets, at a retail shop belonging to the complainant. Appellant committed the alleged theft in the course ot: his employment as a shop attendant. In SUi)port of this allegation prosecution adduced evidence to the effect that on the material day appe.llant absGon_ded from duty witho.ut inf_orming hi_s employer. What he did was that he locked the door t the store and left the keys to one Ju.ma m'ld disapp·eared. on getting this information complainant brok0 open the shop in the presence of the nearby ten cell leader. Inside the shop complainant discovered that there was a shor.tage of 1).5 bags of cement an~ 25 pieces o,f . iron sheets. The matter was reported to police an'ct appellant j

2 . .. was consequently apprehended. i-1hen questioned appellant admitted the alleged shortage of goods which were valued at Shs. 88,500/=• He promised to pay the complainant this amount of money so that the mntter is settled out of court. To make his promise good appellant gave the complainant Shs. 7,000/::. e.s · part payment. But after this payment he disappeared and failed to honour his promise. When defendig himself, appellant gave a very brief tstimony. He just denied the allegation against him. He admitted · to have been employed by the complainant at his shop. However, he was surprised to- find himself arraigned on this cha!'_ge. The learned advocate Mr. Mwakasungula, who prosecuted this appeal on behalf of the appellant faulted the trial courtYs judgment on the ground that prosecution has failed to adduce sufficient evidence ascertaining the amount of goods alleged t0 have been stolen. With respect, this argument does not deserve sympathetic consideration. Admittedly, there had been no mve~, ntory of. the goods stocked in the shop before and after the .~ommission of the alleged ot'rence. But against this omission, there is the incontrovertad verbal account ot the complainant of the amount of stocks which was supposed to be in the shop and ~hat which was actually fog.nd after appellants disappearance., 1'his piece of evidence -has not been challenged by the appellanto The learned trial magistrate was justified to act upon it. ·this is purticularly so When there is evidence that appellant paid complainant Shs. 7,000/= as part payment for the said stolen goods thereby confirming the prosecution claim that at one time appellant admitted the offence. Hence as far as conviction is concerned the learned trial Res·ident Magistrate cannot be However, the sama cannot be saic on the sentence. By any standard the sentence of four years imprisenment is on the high side of the scale. Appellant is a first offe- nder and is of the prime age of 20 years. The value of the goods alleged to have been stolen is not all that much. By making part payment to the complainant as compensation f'or the · said stolen goods appellant has ,expressed an appreciable degree ....... /)

• • ot contrition and remorse. Had the lefhed trijl magistrate ·- considered these factors in favour of the appellc1nt, a thing which she ought to have clone, .she would not have imposed such · a lengthy custodial sentenc,e. The order for compensation of Shs. 88,500/= being the value of said stolen goods cannot be sustained. If the learned trial magistrate felt obliged to make such order, she ought to .• have taken into. account the Shs. 7 ,OOO/: which had already been paid .. In conclusion this appeal partly suceeds and partly. :fails.,} .. J fJnd no merits on appellant I s complaint against conviction which I respectfully sustain. On the other· hand, for reasons stated earlier, I allow this appeal against sentence which.is . accordingly set aside. Instead appellant is .sentenced to impr_j; sonment for a term of six months. And the orde~ for is varied to Shs.· 81,500/=• i ,-(. t___.:_) I l i. ' H;··- A.;~ J lJ D G E .10 I 10/ 1990