SIMON KILOWOKO v REPUBLIC 1989 TLR 159 (HC)

 

SIMON KILOWOKO v REPUBLIC 1989 TLR 159 (HC)

Court High Court of Tanzania- Mtwara

Judge Maina J

18 September, 1989

Flynote

Criminal Law - Theft - Admission - Admission of loss - Whether amounts to an

admission of theft. G

-Headnote

In an appeal against conviction for theft the appellate judge found that the appellant

had admitted that there may have been loss of money, but there was no sufficient

proof that he stole the money. H

Held: Admission that there may have been loss does not amount to an admission to

have stolen the money. The prosecution has to prove beyond reasonable doubt that

the appellant committed the offence charged.

Case Information

Appeal allowed. I

1989 TLR p160

MAINA J

Boaz, for the respondent. A

No case referred to.

[zJDz]Judgment

Maina, J.: The appellant was a booking clerk employed by Bin Cleb Bus Service. His

B duties included issuing tickets to passengers and receiving the money from the

passengers. He was required to hand over his collections daily to the Branch Manager.

It was alleged that the appellant had stolen some of the money so received, and for

this, C he was convicted of stealing by servant. He was sentenced to two years

imprisonment.

The prosecution evidence was briefly that the Branch Manager, PW1 Mohamed Issa,

was receiving the money from the appellant for each day's sales of tickets. The

witness said that he checked the tickets sold and the money remitted by the appellant

on each D occasion. He believed that the appellant had given him the correct

amount. But later when an auditor who is also the General Manager, PW3 Athumani

Jawa, audited the books he found out that there was a difference of shs.49,110/=

between the actual total sum received from sale of the tickets, and the sum which the

appellant allegedly gave to E PW1 Mohamed Issa. The appellant is alleged to have

admitted loss of the money and he promised to make a refund. He was escorted to an

area of Songea Township called Bombambili to borrow money, but he escaped from

the Police escort. He was rearrested later.

In his evidence, the appellant denied the charge. He said in effect that he had

remitted all F his collections daily to his Branch Manager. He was not aware of any

loss or shortage of the money he had received, until he saw the audit reports in the

court. The appellant did not wish to call a witness. G

The learned resident magistrate was satisfied that the appellant gave less money to

PW1 Mohamed Issa than what the appellant had actually collected. As Mr. Boaz, the

learned State Attorney, submitted, this was a case in which there is the word of PW1

Mohamed Issa against that of the appellant on the actual sums which the appellant

handed over to H the witness. There was no dispute that for that period between 28

October 1988 and 31 December, 1988 the appellant sold tickets worth

shs.2,722,170/=. The amount which PW1 Mohamed Issa alleged was handed over to

him by the appellant was shs.2,673,060/=. Clearly shs. 49,110/= remained

unaccounted for. The question is, how I much did the appellant give to Mohamed

Issa? Here, we have the work of Mohamed Issa against the word of

1989 TLR p161

MAINA J

the appellant. It is surprising that Mohamed Issa did not require the appellant to sign

for A the amount which he (the appellant) was handing over daily. The witness

compiled his own list showing the sums of money he had received from the appellant.

The lists, Exhibit P1 collectively, were prepared and signed by Mohamed Issa alone

every three or five B days. The appellant did not sign anywhere in Exh.P1. His

defence that he remitted correct amounts as shown in the duplicate copies of the

tickets remained difficult to challenge. If he had remitted less than what he had

actually collected from passengers, Mohamed Issa would have required him to sign

for that. But Mohamed Issa said that he C did not discover he had received less than

what was shown in the tickets.

What PW1 Mohamed Issa was telling the court in effect is that he received from the

appellant money which appeared to be correct collections, and later he found out that

it was not correct amounts according to the tickets. The appellant cannot be held D

criminally responsible for theft of the money while he had remitted his collections

together with the relevant books on daily basis. It was claimed that the appellant had

promised to refund the money. But he did not at any time admit the theft. He

admitted that there may have been loss as alleged, and suggested that this might be

due to E carelessness in giving change to passengers. That does not meanhe admitted

he stole the money. The learned State Attorney did not support the conviction and,

with respect, I agree with him.

The prosecution did not prove beyond reasonable doubt that the appellant committed

the offence charge. F

The appeal is allowed. The conviction which is not supported by the Republic is

quashed and the sentence is set aside. The appellant should be released from custody

forthwith unless he is otherwise lawfully held. G

Appeal allowed.

1989 TLR p162

A