Donald William Ibrahim v. R. Crim. App. 32-Dodoma-71; 4/12/71; Mnzavas, J.

 

Donald William Ibrahim v. R. Crim. App. 32-Dodoma-71; 4/12/71; Mnzavas, J.

The accused was charged with and convicted of fraudulent false accounting and stealing by a person employed in the public service c/s 317 (c), 265 and 270 of the Penal Code. The charge in count one was that the accused did during the period of August and September, 1969 with intent to defraud, omit the entry of a receipt for Shs. 100/= in the remand prisoner’s register. The second count was that the accused stole Shs. 100/= the property of a remand

Prisoner, which came into his possession by virtue of his employment. He was sentenced to 9 months imprisonment on count one and 18 months on count two. At the time the alleged offences were committed the accused was employed as a prison officer in Isanga Prison and was in charge of the admission section of the prison.

            Held: (1) “The omission to enter the sum of shillings 100/= in the prisoners cash register was, on the evidence, clearly fraudulent and, as the accused failed to account for the shillings 100/= the only reasonable inference is that he stole the money.” (2)”Stealing by servant is by virtue of part 1 of the schedule to the Minimum Sentences act, Cap. 526 of the laws, a scheduled offence. If it is proved that an accused was employed in the public service at the time he committed the offence and that the thing stolen was the property of the Republic, or came into his possession by virtue of his employment then the accused will have to be sentenced under the Minimum Sentences Act. The learned state attorney in support of this argument referred the court to the decision by Biron J. in Yesaya Gweseko (1970) H.C.D Case No. 160. In this case the learned judge refused to follow the narrow interpretation of the phrase by virtue of his employment” by Spry J. (as he then was) in Rajabu Mbaruku vs. R. (1962) E.A. 669. As rightly mentioned by Biron J, the decision in Rajabu’s case is what it is because the learned Judge felt bound by English decision regarding the interpretation of the phrase by virtue of his employment” and was fortified in his decision by the language of section 4 of our Penal Code at that time. Now things have considerably changed. Our Penal Code is no longer interpreted “in accordance with the principles of legal interpretation obtaining in England.” Section 3 of Act No. 26/1971 is to the effect that the court in construing the provisions of the Penal Code will be guided by the principles of natural justice. In the present case there is no dispute whatsoever that the appellant was a person employed in the public service when he stole the shillings 100/= Equally there is no doubt at all that he received the said money by virtue of his employment as a prison officer, that is, a servant of the Government. This being the position the learned resident magistrate should have imposed a sentence under the Minimum Sentences Act. (3)Appeal dismissed.