19700318 TZHC Dar es salaam2

IN THE HIGH COUHT 0? TANZANIA LR AT DAP RS SALAAM CE1INAL APP1AL NO. 7.1 OP 1970 Original Criminal Case No.. 502 of 1969 Of the District Court of Dodoma Dst.rict at Dodoma Before N. N. Mushi E'sq., Resident Magistrate NGOTA s/c NGAHA ......................,.. APPELLANT versus THEREPuBJrc .................... R.1SPON.DNT CEA1GE Cattle theft c/s 265 and 268 of the Penal Code, Cap. 16. JUDGMENT Suniay}ejeotion GEORGES., C.J.— The appellant in this case was charged with cattle theft contrary to section 265 and 268 of the Penal Code. He was convicted and sentenced to three years imprisonment. There was no order for corporal punishment as he appeared to be over 45 years old. There was satisfactory evidence that PW 2, Athumani had lost theo head of cattle on 10th January, 1969. His efforts at tracing them were not immediately succesfu1. Some four months later,, while he was In company with Longa Pagazi 1 PW 3, he saw the appellant and another person called Hob, who has not been traced, driving an animal through the bush.. He recognized the animal as his and according. to him he stopped the appellant and told him so. Athumani's evidence is that after some argument the appellant admitted that he had stolen the animal and aeked that be be allowed to return the animal and that the matter be forgotten. Athumanl refused to agree to this.. Thareapon they drove the cow to the nearest house which was that of Mhangwa, PW 4, Mhangwa confirmed that the appellant and his comrade flobi agreed that they had stolen the cattle and sought to have the matter settled by its return and payment of compensation. Mh.angwa would have nothing to do with the matter since he was not a 10 cell leader and thought that only such an official could intervene. He recommended that the police be iformed. According to Mhangwa while the party was waiting at his house the appellant deliberately frightened the cow which ran away. While the cow was being chased, the appellant and his companion, llob,L, fled. The appellant was later arrested but Hobi has not been found. In answer to this case the appellant made an unswoxn statement asserting that he had not stolen the animal and that it had not been found in his possession or in his herd. In the memorandum of appeal it is argued that the trial magistrate erred in holding that there was satisfactory evidence of identification. Atbumani had testified that he had identified the animal because it bore his brand mark - two cuts on the ear. Advocate for the appellant had urged that this was inadequate as the Wagogo normally marked their an.rnals by outs on the ear. The trial magistrate, while agreeing that this was a usual method of branding, held that Wagogo cattle owners could be depended upon to distinguish between their particular cuts and others. Further, since the appellant in his defenos had not laid claim to the animal he was satisfied that the evidence of identification was adequate. This conciu.sicn seems quite reasonable and I see no merit in this groud of appeal. ... 2 ff iw./ ~ —2.- It was also urged that the trial magistrate erred in holding that the appellant had been in possession of the head of cattle merely because he had been seen following it in the company of another person. There would have been some merit in this submission if the evidence had not gone on to establish that the appellant and his companion had discussed with Athumani how they had come into possession of this animal. They had also gone with him to Mhangwa's house in an attempt apparently to settle the issue without allowing it to reach the court. It was not the case, therefore, that the triil magistrate had based the finding of possession merely on the fact that the two persons had been seen following the animal. There was an abundance of credible evidence that they had trated the animal as being in their custody. It is also urged that the trial magistrate erred in giving undue wigbt to the alleged confession said to have been made to Mhangwa, PW 4, particularly in the light of the appellant's retraction of that cnfession in his statement to the court. I do not feel that the magistrate did give undue weight to the confession. The retraction of the confession in this case could have no substantial effect as there was an abundanóe of oorroboiative evidence and the appellant had not given any plausible reason for his having made the confession in the first place. The trial magistrate was entitled to rely on that confession coupled to clearly proved possession as the basis of the conviction. There is a Gtatement in the judgmànt to the effect that the talKnm magistrate agreed with a submission by advocate for the defence that the appellant's possession was not recent, meaning that at the time the animal was found in the appellant's possession it could not be said to have been recently stolen. In the case of àattle I certainly would not have thought that it could be held that being found in possession four months after the theft was not being found in posseusion of property recently stolen. The length of time within which the doctrine applies should depend on the nature ofthe thing stolen and the likelihood of its changing hands so quickly that it may have passdd through many hands before reaching that of the defendant. Cattle are comparatively expensive much treasured, and certainly do not pass quickly from one owner to the other, Reading the judgment it appears clear that the statement must have been made per inouriam as the basis of the judgment appeirs to have been the justified finding that the appellant had been found in possession of pioperty recently stolen and must have been, in the absence of a plausible explanation either the thief or a receiver. The evidence of the confession reinforced that conclusion and led to the finding that the appellant was the thief. The sentence imposed was the minimum required by law. I certify that this appeal has been lodged without any sufficient around of comolaint and accordingly it is dismissed summarily. (P. T. GL'ORGES) Chief Justice Dar es Salaarn, 18th March, 1970.