19830126 TZHC Tanga

11/C- ~Ii , :~ 1 IN THE HIGH COUR~ bF TANZANIA i I .. I! .AT TANGA" 1 ·,i CRIMIN, JJ APPEAii NO. ~1 ~ OF 1980 (Original Crimina:. lta.se No~ 107 of 1978 of the) (District Court u: Ibndeni ~strict a.t Handeni) 23efore t M.H. B:::i:ka:r;-i-Esq~' District ?wbgistra. te ~ ,f I , Y.AliAYA 11 '. )HAMED;'~: ... l ••.•.•........ 4-PPELLANT ( Orig;' Accused) 1 ' ; ' ' \ ,I i1 11 . Versus' 'i· , 1, " . THE REJ 1TBLIC~ •• ~ • -~ ~ • ••••. • • • • • • • RESPONDENT · ( Orig~' Prose cu tor) Ii II ,, CHARGE'. Qp.:t;r~le ,J st~n.ling c/s 268. (1) and 265 of the Pennl Code Cap. 16 Vol. l of the L.'lws·:; . ' . ' JU . D G,E MEN T ~ I . Sisya., . °J.:~ · . ' . ~his appellant, Yo. j:J.yo. s/o- Mohnmea,: and a: sixte·en, year old youth, ,, II '1 Ba.ka.ri s/o Msv~, were ·ch: rgea: with pnd convicted o~ Cattle theft ~ j • • !1 " contrary to sections 265 n: 1 268. of· the: Penal •Code. B.1.ko.ri who, . . I i -incidentO:lly, a.ppeo.red at · he t~1ia.1 in ·tne Court below a.s the .second. ,,.a:ccused, wa.s sentenced to ;we1ve; ~trokes of th&): cnne ~h,_er.ea.s the ""·!· .· f ··1·•·1 i + :] appellant wq.s sentenced tu the· s11tntutory miniIIll.lm of five 1.e.c._rs · imprisonment: . The- offenc( of ca'ttle ,: theft in respect pf_, persons of :t;he ilge of ;:\ ~ove eighteen yenrs ;being scheduled under t:t1e ,Minimum Se_nten:ce·s Act; 1972; He .s n9w app:aling to ·th~s_ Court; ~e 1 second nccused did not

a· :pea.I~ .. /:::1 .'. : I W!l.11, however, be d~~+ing, ~itb . his case .lo,ter in this S-".me judgement·: rI ·It. wo.s not disputed a.t the trial nor is it being disputed now on appea.l _that the a.ppe·11a.nt wn~ at the ma.te:ia.l tiple a. herdsm3,n ici employed by PWl, the compla.irunnt in the ca.se. Evide~ce wa.s ~iven · "boc the complainant O.'\i the trial to the effect .thut on the late .. ni, / •••• 2 2 ...' afternoon of l0/6/78 he counted his goats which were under the ca.119 of the n~pelld.nt' a.t:d iound th~t theywere.a.11 there:- one hundred I ,. , ,. twenty;;..two of them.· Therec"Lft'er he left th;e· appellant with the snid ·J. gonte at the nearby sqhool ground a.wni ting their closure in the ca.ttle "l pen. On :-he following mmning the person who was looking ·after his head of cnttie,' one Lya.Jca e/o Mbwemo (PW2) 'reported to him that the nppella.nt had not. tu:n7d<up at the cattle pen· to coJ.iect the goats;' On hearing ;:·J ,, this he, 1;e~ the compla,i:a.nt, went and counted the goa.ts;1 He found 'Ni twenty-two of them miSSin}& Seventeen she-goo.ts nnd five he-goats, The.mtitter wo.s'then repo:·ced to the loca.lJj.uthorities and subsequently "" j . , .. ; . ~n to the police~ Lyako. Mbwem.o (PW2) ➔ I; stified th; t on the relevant do.y the appellant brought the goo. ts to th~ ca ttl_~. y9,;r_gJ in the enrly evening. Mter keeping them he, 1.·e. o.ppcllnnt, told

him that one goat wa.F3 missing . ' a.nd alleged thn:t he wa.s 1;0:j.ng to look for it~•. He went on to tell hiln, • '. . . ·.J:.. . \ '~·- • -r;e. pW2, .that in case he, 4PI;>e;t.lo.nt, failed to. ·:.urn up then he·, pW2; should, notify their emrloyer,. PWJ. 1 so that he ID,,,'"ly'look for another . ··i • herdsman for the goats; , 0 • The, appellant went ::;,wo.y. an_d did not return ~ . ~ . 9· . ~ ~ that night, 0.tl the followi: g morning pvi/2 •reported th_e matter to PVIJ., l Evidence wo.s '?'.~~o give:1 by one B.1.knri Mkomeni (PW4) to the effect that he was one of the, pers . ns to whom PWl rep(?rted th? loss of 22 1 goa.ts·• iion J:J./6/78 a.nd to whon. he also a.ppea.lecl for help~' Among the pla.oes PW4 visited in search of the miss;Lng goats ·- wa.s Kwedi.kwa.zu village: . . VlhUe there. he sa.w the sec ()11:d accused who had with him ten gon. ts: When 1 a.sked the second accused t )ld pW4 and others tha;t originally there were tw...e~ty;_;t~-o . goo.ts:. Twelve of the.m hnd already been trnnspprted to Mbwewe; La.ter, the complainant identified, all the. ten .,t~oa.~ f.ound r.il Wi,th the second a.ccus.ed as being some of. his missing gon:t;s~ , In.his evidence a.t the trial the complainblt stated that he •• _I _: .. / .. ••• ./3 ...•·' 3 . ...' . O.Sk~d -~he second 'accused ns I to h?W R-e c~!t1e I .. '•t,y th~ j:io:9ses:Uon of i his . ~..!- • • ~ ~ I : :., - • c I •

• • f_( ·. r t '.I • •• • ;,ii . goat~~ In response thereof the·. second - ..,.:_.:;· -:-: accused ·: .d'i!s"clo;sed . . to.,\ him ' ,. . .. that the said ten goats and. twe1_ve oth~_rs, i'. togEi-the._r, -·• me.king a, total • , I • • ✓ ) , of twen~-two goats, were pur~hased by hif 01aar bro~fr from one The said elder orother of the second a.ccus,ea, t_ook twelve .... ; J': .::.!. •• " goats in. a motor vehiQJ.-e -i;o Mbwe_~_e: .. ~e, i~'e ~ sec.and, accused, was then .' . t •.' ~ ', i. . : asked by his brother to look after the remaining ten goats While·. • "' . •: • •· ·_.\ • :" ~ ' • • ,_. t ·" • awaiting his return~- It v·as during the period of waiting when he was ~) . arrested• The appellanJ conceddd at the trial that he is also known 'llii by the name of Tumegani. The second accused repeated the story which he narrated to the ,· ,: .a ..... complainant to the usknri who investigated the case, PW3 • He, seli)orid : :'~ • • • • II . '!, j accused, go.ve the name of his elder brother ns Zahor Mswa.;1 Accordµig .)·. to PW3 he t~ied to look fo~ the said Zahor Mswa but failed to tro.ce,~ui:: • . ··~ i_ • ,:_· As if. their being the subject of theft was not.~ufficient ordQl . . ·r-1 ' • for the goats n.11 of them perished in a. L1otor nccident while th~y ._ .. ' were ·being driven to the Police stntion where it was mount to ret:lin . . ' Iii) them ns Court exhibits~ . ,.: .,

. The <;ompln.ina.nt looked fr. r the nppellnnt a.fter recov~ring the<~. ilii . . ten goats•·.o.i,He, eventually, . • '. found him preparing to leave the v:J..llnge 1 Sill8t prob..1.'ltl.;y in flight·:, · In his statement upon nfi irma.tion in his own defence a.t the trinl ;I:·). f--,J."(.- .;·._:~.;_). • I;' • : • ,. o6 ·•··): [~~Jjr:':;~ the a.ppellan-t nsserted thnt t:1e tw.enty-two goats got lost: H~ "reported, r·:~.!1i·. ·, .L bi\:- · · ! • .,r; ·'- :· ·; r··· .... , ;_- •: this to PV/l Who then a.d~ised him to look for the missing goats a.roun4 ,-. · .; • ·1.i··: ;. :. :: ,·., :· ~.1:1:r• ~ ·· · 1 .... ·.. _,, · on ·, · ..- · -- ·• · ·1· ._., · · · ·c · . • · '. \· .. . .. . . the local s~~ool farm · \the norrow _as 1t wa.s then nlready evening! On the following .day, he ·mncle effor1s to look for the goats but these did not bea.i- a.ny fruit; La.ter he returned to where he used to keep the gouts~ At ~bou~ 9.00 p;m. the complninnnt, a.ccompa.nied by his brother, c~me to the snme ~lace nnd demanded cnsh 1 Shs~ eoo/=, which 'i;j they ~lleged be, nppella.nt, ren11zed nfter selling the_m~ssing goats~ .. .( ' ; ... /4 .;· ' He de~ied whereupon_ thS compl3.ihartt .and his cdmpanio:n_.asso.ul te•d:-'3/:, I ., '•-"<. • • . -·· 1 • • him in the Course of Which there was a traurti,itlc extra.ction pfJhii, • ~• • • I • ' ~ • •' • • ' • - • • • ~ ~ one tooth~ Eventually he was,

taken _,., - t,o the Poi ice .s-to._:tion a-t· Kabu:ku - ' . ' • second accused for the first time; C •) • •• • < ' ' In. his judgement '.- the learnejd trial ( evider1;ce adduced in· the case: He accepted the evidence. of the .. n . . - ··. w:i. tl,esses Prosecution · , . as w_ell as the story given by: the second.accused • 'J as a true and correct st~tement of facts; In his petition of appeal the appellant avers that the learned ~- '< tria.l :r&1.gis~:rate erred _in convicting him of cattle theft ._because he reported the loss to th.e complainantJ no stolen goat was. _foµnd on him; and that the person who was actually found with the :s:t;qlen :,g-oats was the one who stol~. tl;lem. This appeal raises simple fa_ctual . t. .issues Which rest squarely on the question of credibility;' The learned t;-ial Ahgistra te had-:· -··-<J the great n4-vantage of seeing and~ heartng t}:ie. witnesses: in, th,is .c~ee: I have not had that chance myself~J On going.:furougti tl;l~--~videnq_e .on reoord I find no material on which I can pre>perly faul~ ,tte l~:arned trial Magistrate is choice to believe the Prosecution ·'.w::!,;tn~ss~s _and the seconci de oused ,, On my evaiua tion of th~ ,.evidence a.~/a. whol~ :,#lere I can be no room for doubting the appellant 1 s guilt;·of th_e ..9ffepce, yit~th Which he was charged;' The conviction against him is thus p_~oper ,and the same is hereby

upheld~' As regards sentence, as .at~e_ntione-d,: -~,.:: . the same ia the bare minimum under the 1aw~J · ~ . _ Now turning to the second ac9used, although·, as aforesQ.id:'.l:le,has not a.ppea+ed it i,s my settled view t_hat, he_ wqs wrongly c.onviet~d a;nd seqte~c,ed,;__ :> .It }S ~urprisin~: .that h?,vi~g~ de9.:i:det-to. ..PE1lieye, 1,1~d a.ct ~P9P, ~is,;l\~p- ~~~en~-_ the learned_ trial. Mag~str~ te s,i;ilJ,: fcoµnd ~_iti~pe,n, to h~ 1i9,:,,qqpvJct:' ..Let me al~q st~te thq~ _the .s.:t?:Y::, ~y.en 12Y" the :, . . ~ - .. J. .. -~ _.. ~ .• . • - ~ t ... 5 second accused does not only sound plausible but it also has a ring ' of truth; The second accused stated that the 22 goats were bou~t 'fiij . by his el~er brother, ~ahoro; from the appellant. The appellant,· of course, denied this• No one, however, would hnve expected him to wi admit in view o:f the fact that he hc'ld pleaded not guilty to the charge. The most important point, however, is that both the trial Court and this appella'be. Court have found it as a fact that the appellant did se11 the 22 goats belonging to the complainant to elder brother of· the second accused: He, appellant, had .no power or right to doso•" ~e second accused was only told by his brother to keep the ten goats :'ound with him while he himself mn.de arrangements to have them ferried to Mbwewe llke the other twelve goats, On the evidence on

record there is no material whatsoever from Which one can positively find that mens rea was established in the case on the p~rt of the second accused: For these reasons I will exercise my powers in revision and quash the conviction against the second accused·, fu.kari E:/o Mswa:: This exercise is, however, useless regarding sentence which must have already been executed by now: All in all this appeal fails and it is hereby dismissed in its entirety: Delivered in open Court at Tanga this 26th January, 1983!