19701127 TZHC Mwanza7

lU T1 HIGH COUNT OP TAJZIdTIA AT i.VVANZA Appellate Jurisdiction OHIIiINAL APPEAL NO. 96 OF 1970 (Original Criminal Case No. 195 of 1969 of the district court of Hasra before P. 5, Litanda Esq., district magistrate). LmUGA aSO .. . . .........APPELLANT (0IUGINAL ACCUSED) versus TiU UNPUBLIC . . . . . . . . . . , • .UNSUOPDIUT(ORIGIITAL PHOSECUTCE) OHALGE:- Cattle theft c/ss 263 and 265 c:E the Penal Code. JUDGMENT EL-KINDY, Ag.J. The appellant, IThuga s/c Miso, was charged with and convicted for cattle theft contrary to sections 263 and 265 of the Penal Code, Cdp16. The charge alleged that he had stolen two bulls, the property of the complainant, on the -night of 3rd August 1969' He was found guilty and he was entenccd to the statutozy minimum sentence.of three years, and awarded twenty-four strokes of corporal punishment. As thc alleged bulls were recovered, no order for compensation was made He is now appealing eacinat his conviction and sentence Briefly stated, Guluse s/o Chinija (P.V7,3) lent his two bulls, t subject of this ease to Zengwa 5/0 Gwa (P.H.2) for his use in cultiva- tion, When Zengwa was asleep during the night of 3rd April, 1969 the two bulls were stolen from the herd of cattle outside his honne He discovered the theft during the same night and he accordingly raised ar... his slam was responded to but it appears that no action was immediately taken until the following morning when Zcngwa, accoapaniod with others, went to report the theft to a -tei ecll.leador Efforts were made to t:mcc the cattle by following the foot-steps, but those efforts vrore not frtttf. Thom Zengwa decided to expad his senreh and visit the various catGlC auctions. He waS joined by O-ulu.se at Lalago and together they rent to Hasra. While at the auction area 9 at ltaswa, Zengwa and Guluso saw their two bulls but they could not tell who was the person who hd taker them there. They alcided to keep a careful watch in. the hope that they would soc the peron who brought their cattle there • Later Zengvva went SC; report thiD discovery at Maswa police station. During his absence-, Guluse, saw Mbuga s/c Misc, tho appellant, appear to collect the cottic and Guluse approached the appellant Guluse said that the appellant, ±ter telling him his mane, told him that he had bought t1e two bulls at the auction, but he could not tell him the persons who sold. there to him. The appellant, after the return of Zengwa who was followed by a police afficer, was arrested and taken to Haswa police ­,tation v The appellant admitted th&t he was taken to the police station, but he claimed ihCt h. told the police officers that he had bought them from hipavia s/o Shiarhulala (P.w5)9 and that he took the police officers to the house o± Liipawo, but ha was not thore However, he was roloased and he promised to look for . . .2 Mipowa, as he Irnow him very well. He said he traced him, arrested hir and took him to Shinyanga police station. Later Liipawa vine sent to Iicsu-a In Court, Liipawn (P.d.5), while admitting Thht he was arrcetcd by the appellant, deniod, naturally in my view, that he had sold any cattle to hi..i. However, he admitted that the appoilsat told him that he was taking h -L-Ya to the police station for cattle theft. And in support of the appellant, Idagesa s/o Some (P.\. 4) said that the appellant eng aged kin, to look after tile two bulls in question, and that the appellant told hiji tit he had bought them fro:u the person he subsequently traced, arrcct ed and taken hit: to police station a The appellant also called in one Kija /o Kuha to give evidence. This witness told the t,jal court that ho witnessed the appellant buying the two bulls from Idipawa, but he said it was Shinyonga and not z:t Nasw. The learned magistrate found hija unreliable J~ r \a'uess for reasons which he stated one re3octed his evidence. On tillS evidence, the lorned ma g istrate convicted th appellant as charged. ith due respect to the learned magistrate, as I reuarkedwhen I admitted this appeal, the evidence is in favour of the appellant Liipawn as a person with his own interest to serve, could not be relied on as a reliable witness. One woul expect Iiipawa to deny selling the two bulls to the appellant now that there was a risk of one being charged ior cattle theft. The appellant's explanation seems to ho fully supported by that of Mar:osa s/a Some, who cinlued to have seen ifipawa sell the bulla to the appellant. If that was the case, it is difficult to understand how or in what way the learned magistrate was satisfied that the appellant was the oie who hd stolen then from the household of Zona on the night T of the 3rd April, l969 Indeed all the evidence showed that not only that the appellant fully explained how he coma to be in poesession of the stolen bulls but ho went further and assisted in lading for ihipaviaux:til he was able to arrest bin. His conduct, therefe, was inconsistent with a person who was guilty of theft And even the police wore inclined to believe the appellant as they released him on promise iht he would apprehend the person who had sold him the offending bulls. In the circumstances, I find, that the evidence does not justify te conviction of the appellant for the offence for which he was chargod There was also no ovidence to indicate that he received the two bulls knowing there or having, reason to believe that they were atolen property He bought thn at .410/— openly, thoua not ding the auction, and this price cannot be said to be so meagre as to raise- a suspicion ti -nt the cattle might have been obtained by unlawful neans' The.learned State Attorney did not seek to support the appellant's conviction. ..p.t.o. , . .3 The ppellc.rrts conviction is quashed xid the santence set aside, I order that the appellerit be released for hwith unless no is held on soie other law±ul purpose, Delivered in Court on 27th Novenber, 1970. (z. i. El—Kinc1 y) ACTING JUDG