augustini marutini ndunguru vs republic 2007 tzhc 171 18 april 2007

IN THE HIGH COURT OF TANZANIA AT SONGEA CRIMINAL APPLICATION NO. 1 OF 2006 (ORIGINAL MBINGA DISTRICT COURT CRIMINAL APPEAL NO. 2 OF 2004) AUGUSTINI MARUTINI NDUNGURU .... APPELLANT VERSUS: THE R E P U B L IC ............................................ RESPONDENT 05/03/2007 HEARING CONCLUDED 18/04/2007 JUDGMENT DELIVERED JUDGMENT: KAGANDA, J. The appellant was charged with another for the offence o f cattle theft namely (stealing o f goats). He was convicted and sentenced to fifteen years jail imprisonment. He appealed to the District Court and his appeal was dismissed. He has advanced four grounds o f appeal centered on following issues. Those are, the identification o f the stolen goat, the application of doctrine o f recent possession, since he was not caught stealing nor was he seen at the scene o f crime. The conviction was based on three prosecution witnesses but none o f them testified as an eye witness to the crime. On the material date and time the complainant SMI was away from his residence. He found two goats missing from their kraal but did not give any description o f the two animals. The learned State attorney pointed out that it was not sufficient for SMI to claim for the theft without giving the proper description o f the stolen goods. In the case o f M ohamed Ismail VR. [1975] TLR. 31 the Court observed as follows:- “ W hether the identification o f stolen goods is necessary the prosecution must prove beyond reasonable doubt that the goods found with the accused were those o f the complainant”. In the case at hand their was no identification at all by SMI, all that he stated was:- Tarehe 18/11/2003 nilisafiri kwenda Luluwali, nilirudi tarehe 20/11/2003. Nilipofika kwangu saa 1.00 usiku, niliangalia mifugo yangu nilikuta Mbuzi wawili hawapo., Nilipeleleza na nilielezwa kuwa mbuzi wapo katika kijiji cha Ngwambo, wamekamatwa pia watuhumiwa wameshikwa Chaula, na mwenzake, walinieleza mbuzi wapo kituoni. Nilikwenda kuangalia mbuzi hao niliwatambua na nilionyeshwa watuhumiwa SUI. Alidai mimi ananifahamu ndipo nilipoletwa M ahakamani”. SMI did not state reasons for identifying the animals because he did not even say whether they were o f what sex. His testimony was very weak and no court or tribunal could have acted on it. Now that the identification did not establish title to SMI the issue o f recent possession was unapplicable. The prosecution evidence alleged that, there seven goats in the possession o f the suspects but only two were supported with legal receipts. A goat is an ordinary or common tamed animal unless otherwise it be identified by a special mark then nobody can claim title. Similar view was observed in the case o f Fadhili M ohamed VR. [1974] TLR. 5 where it was held that:- “In a case involving things o f a general description and o f common manufacture, anyone claiming that they belong to him must show special marks peculiar to him self as evidence o f ownership” . The fact that the appellant and his companion were arrested and SMI found them under custody at the police post together with the animals was not sufficient for him to claim title to those animals. In the event I totally agree with the learned State Attorney Mr. Sedekia on that the prosecution had failed to prove their case to the required standard. The appeal is upheld and the lower courts judgm ent and sentence are hereby quashed and set aside accordingly. Unless otherwise the appellant has any legal reason to remain behind bars, he should be set free forthwith. Since the charge was for two people and 1st accused one Majilino Titus Chaula who has not appealed should also be set free forthwith. Right to appeal. S.S. KAGANDA JUDGE 4/4/2007. 2 18/4/2007 Coram: Hon. L.M.K. Uzia, J. For Appellant: present. For Respondent: Present. C/C: Harriet Mr. Sedekia for the Republic. My lord the matter is for Judgment. Court: Judgment read before the appellant in the open Court. L.M.K. UZIA JUDGE 18/4/2007. SSK/PJL. 4