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IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 237' OF 1974 ORIGINAL CRIMINAL CASE NO.254 OP 1974 • OF THE DISTRICT COURT OF KILIMANJARO DISTRICT AT MOSHI Before:— W. NATHAN, Esq., DISTRICT MAGISTRATE., THOMASrmEKIO ..........................O.,..APELLANT • (Original'Accused) ersus • THE REPUBLIC ................................RESPONDENT • (Original •Proscuto.r) CHARGE:— Cattle theft, c/ss 268. an26of the Penai Code. JUDGEMEN • Jonathan, J. The appellant was convicted of cattle theft c/se '268 and • 265.o.f the Penal Code. He was. duly given a t1,e'm.inimuw seiitence "of 5 years" imprisonment. ' There is agreement that a hegoat of the complainant (P.W.I) wasmissing frot'a herd, of about twenty goats. The hedsboys were 'howeier not called to say' when the goat disappeared.. On'the' ?ame day that the complainant received' iport of the missing goat -P.W.2, 'a butcher, seemC to have "b"oüht a 'goat from a maY who was ac.dompanied by another. He had then slaughtered the goat and Cold the skin to one Martin or Augstin, it is not4 clear which. This person was not • called either, but it is undisputed that' P.W.2 clearly identified the 'skin be had so sold out. The complainant,, in turn, identified the skiri' as that of his missing goat, but he did not pbint out .an' marks on which he was relying..." According to P.W.2, when he was later shown the appellant he identified him as the man who sold :hia"the'goàt.. A man was then called in as the witness was giving his evidence. This'seemed to have been known as Andrea, who, he said, had been in the company of the appellant when he sold him the goat4 Very significantly, however, this man was not called to testify eVen though he was available. The appellant in his evidence denied all connection with the offence. The learned' tri.al magistrate considered the prosecution evidencs, especially that of P.W.2, to be unassailable. He accordingly rejected the defence and convited the appellant. As will have been apparent from the foregoing, the • pro'sc12tion case' waCunsatisfactry. •- - - - 2 2 Firstly, as F. W. 2 had not othervise known the aje.]Jart t: iS doubtful if he could be so clear thet the arpellEnt was the person who oIciMm the goai:and ib.by.ridW this was a proper cse for holding an ilcntlfication parade Tht was rot done. The trial court found, however o that the witness vas reliable because he had. no- reason falsely t.oimpiicate the appellant. This, with respect, was a misdirection. The witness may have had all the desire of tll•ing the truth but it was anthr matter if he c.puld. o u re.s a to, the'appearance of the culprit In anya cse, the witness as the buyai of the stolen goat had an intereOt in the matter' and Was exposed":td the temptation of picking on anyone that seemed to be handy. Secondly, as already obseed, the complainant does not seem to have described the missing goat with any particularity, and it was not enough for him neely to :'a:sert that the ski:n was that of his goat. Finally, no reason having been given for not calling Andrea as a witness who was after all available, the inference was to be drawn that his accoüirb would have been adverse to the prosecution case. Akin toth±s:'is another oignificant missing link in the chain of evideflh'to show what lad to the arrest of the appellant. I am clear that on such sketchy and 'thin evidence 1the conviction cannot" possibly : b,e supported. Accordingly, the conviction, se'n;t'end add brder for co.mpeisation are set' 'aside. The appellant is to be released if he is not otherwise: lawfully held /ITPM.