Andrew Kabeho vs Republic (High Court Criminal Appeal No. 170 OF 1979) [1982] TZHC 180 (2 December 1982)

IN..THE HIGH COURT OF TANZANIA AT TABORA APPEllATE JURISDICTION (Tabora Req±tj i... ........ (HC) :CRIMINAL APPEAL IO. 170 OF 1979 ORIGINAL CRIMINAL CASE NO. 764p.977: -;• . OF THE DISTRICT COURT OF .TABORA DISTRICT' T'i;rt Before Mkate, Esq., Resident Magistath ANDREW KABEHO ......................... • • a cc a c . A ?ELLANT — v e r s u s. - THE REJ3LIC qacc.om.,c000,0 a ooao....a. RESP0NDENX' I .JUD GM E N CHIPETA,. J.: ;... .. S • The appe11ax Atidrew-Kabho, wa's èharred with Farty . e . ight eoünts of ;fraudu1.entfa1se counti uu stealing b' clerks and servants c/ss 317(a) and T1 and 265 of the Penal Coce. He was convicted on twelve courfts, that is, counts 3 7 15 1 1 21, 31 and 47, which werid arges of fraudulent false accountinj, and counts 4 1 ,16 1, 2,32 and 48 which were charges of stLal rig by •1OPt5 and servants. He was then sentenced to servc a substantive sentence of four (4) year's imprisonment. He was acci..tted on the ,rest of the court0 He now appeals. The prosecution'eV1dencwas'that at the mat?ria]. time the appellant was a c - hier in the defunct Tabora Reyion cooc(erative tjnion (hereinafter referred to as TAPECU) alias known a Ngnmali0 on 16/6/75, a cooperative inspector of Ujamaa and Usha inspected the books of accounts of TAECU and discovered that some documents, among them, paymentvuchers and cash sales, had been suspiciously altered.. He.thend$ided to trce the payees in respect o'the suspected'1nnt vouchers.. and cash sales to examine their duplicates. In the course of that exercise he discovered that the duplicates in question showed 1esseramountsthan the originals.. The tatte., was then reported toplie and the appellant wasarrested.. • For convenience, I will deal with the counts on which the appellant was convited in the order in which . the learned trial magistrate dealt with them. I will take counts 17 and 18 first. in respect of these two counts, there was incontrovertible evidence that P.W.4 was paid in person Shs.408/= by the appellant. p,W.4 duly signed the payment voucher which read Shs.408/=. -. . . . . . . ./ 2.

S . . •: 2 . : That payment voucLer, h91er,subsequent1y read shd.1,c8/. Besides, p.%j.4!sorigina1 receipt read Shs.408/: The appe11ant'Sd.OriC€ - V%; • that since th( doc:rents passed through many hands in his office, the a1.eration n:ight have been LadebaTierson other than him3elf and that he received the i iôs and payment vouch rs with alterations. As thê1eaiedtrial'naL.Ptrate pointed .oit, the appellant was the GUly person who stood in a position to gain iror such alteration. sosides, te appellant is ridiculed by the clear ciiiden6é'of v..'k to whom the appellant paid " ah'd' not'Shsi C/- . Jei'niorin 'this evidence was the evidence of the.handwriting expert, There Wa5 ttierefore,.rtuininating evidenc. to justify the appellant's convictions on counts 17 and, iH. In respect of counts 15 and 16, the was that P.w.4, repaired TEsoo:Vece... -' a siii. 3 job of welding bake .pipe . ',': c.hated.'h..2G/= and. issued a cash sale'. for that a un went to..cc11ct that amdunt.. from sied . the pyrent voucher. 'Subsequently the....pyen o u e' r and oriinai c a s h sale were itered''te rad Ss,2,;.0/ 'The tria1 ragistrat,e b1ieved in this respçct, evidOnce rtifod .by'that of the ;ur. epu.rt whose opinict&.,.as that the a1teration were ..Irch3 by tQ appellant ... (sjdeS circumstantially. ...it. is a raas.on )lc'..i.nt that the appellant m a de .th.e alterations s he wa.s the. oaly., person who stood ..tp• cain. by such ;.The co.nvic.tio.ns in res.pet ...,. . . fulLy justified.

• ... I...re-spep t...of po.unt.s., 21, ano. the r.. was. incontrovertib1 evidence that o.ui'it.. , ,fldr.. 2 .k sodas worth as .8l/2C and, F0, .9,.w.s tpai& the ajount Oy "the qppellant. Subsequently the .ocuments....ere alt,ed to rad $.hs .381/2G. on-the. credib vi,ne of P:!.9 and tie opiniqn of the :h.ndwriti1 expert ,. coupled with. circumstantial . epert eVidence, convictions in r(spect 22 were ine,vi.tab.le. . ' I. ... . . Counts ,:l and .3 .were of the handiritina e.xper n.41 L ol . .t P. ' toc1 the coLrt that the, appel.lant..paid ,.hi,. for 12 r!ietres of cloth or.edbyTCU0DoCuOfltS.iflreSpeCt of that.ransaction were su ujLy,lç'ed..to read, S,hs.(/=.ere a:ain, the learned .jai t.rate' inforence it was the app ellant who falsified the ;'cks 01 accounts was inevitable,. ...

• 3 - p.w08 was also a matertal w1t,ess,.ac was the handwritinq epert, in repectbf coi-nts47 and 48. t was fully established at the appellant paid th P.W.8 Shs.lOY= for two metres of American lo.th. Subsequently, the. documents it-i respect thereto were altered to read shs..l,210/. Again, the inference that it was the appellant o falsified the books of accounts and pocketed the difference was fully lustifi:ed on.the evidence. Finally, I turn to gounts 3 and 4. The evidence of P.W.lO was that he repaired a rad±ätor for. TAPEU and chergeel Shs.50/= which was paid, to him by the appellant, subsequently, documents re'ating to.:that paymentwere altered to read 3hs.1,050/=. p,W.2the handwriting expert, opined that those alterations were rade by the appellant. The leabned magistraAe so found and erttirely agree. The co,wictions in respect of. count3 and 4, theeore, •cnnot be assailled. AS for-the sentences,.I am far from persuaded that they are anifesiy excessive as to warrant - inerererce by this e,urt. .. They will, thereóre,.renbai.hurdisturbed.. In fin. this, ápeal is dismissed in its entirety... I / .T3 D. CHIETA .. .. - JUDGE De].Lvered in 4pen court at Tae this 2zd 4ay,of Decerber, 1982. TABORA - - - B. D. CHIPETA - 2ndegember, ,19821 - -- ....