19710520 TZHC Arusha

IN THE HIGH COURT OF TANZANIA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.6 OF 1971 ORIGINAL CRIMINAL CASE NO.282 OF 1970 BORE A.M.A. OMAR Esq., .......Resident Magistrate 1LLAND0LOKIs/0SEuTA .............. ....... Appeuants 2.NDIBAYO /0 PURUKEYI 3L NAB ORIJ /0 MUTURU ..\ 4.KARIYO s/o LAMALEYI \ 5.NJOYE s/o NARANGASI versus V.. IE REPUBLIC . . . . . . ........ ............ . .Respondent 2 CHARGE: Cattle thft c/s 268 and 265 of the Penal Code. Cap. 16 Vol.1 of the laws.. Kwikima 4AJ JUDGM ENT The 'appe11nts and two others were charged with stealing. 25 heads of cattle and 20'. goats all being property of one Shifayo Korondiyo. The trial court found no evidence with which to convict two of the accused and acquitted • them. The four ape1lant were convicted and sentenced each to three years and twenty four strokes. The appellants are now appealing against conviction and sentence. The prosecttion evidence came from various witnesses who received sôme of the stolen, animals from the appellants namely Landoloki, Ndibayo, Njoye, Kariyo.andNarobu. .1 will hereafter refer to them by their first names which are so unusual as not to cause any confusion. As alreadypointed out, there was ample evidence upon which to found the convictions. P.W2 Saiyai Serengeti was one of the people to whom the Landoloki sold a cow and a heifer. He was in the company of Njoye and Naboru .whenhe took these animals to Saiyai to sell them. Saiyai saw them in the appellant's compary. P.W.5 Ndimorwa the brother of Saiyai also bought three 'C:OiS from the Landoloki who was then in the company of Naboru. P.W.3 Ndimbai received two COWS from Naboru, Ndibayo and Kaniyo for safe custody. P.W.4 Swaka received thf. skin of a cow from Kariyo. P.W. 5 Lesende Uwa received a bull from Njoye alias Lenarangas in settlement of a debt. The same Njoye did pay another cow in settlement of debt he owed to P.W..7 Ngadayo. All these • were identified b their owner from the marks which he had put on them. Indeed his herdsman even named one of the cows "Kichwa" and when he reached. Sindaiwa's boma in the company of the investigating officer, he called the cow by name and it responded by following him. The, court did adjourn to a spot where the animals were and there they were identified beyond doubt. The court then properly held them to be the complainants property and it cannot be held to be in error in view 9 if the preponderant evidence. The theft was committed on 25/12/69. The accused were first brought to court on 18/2/70,less than two months from the day when the cattle was stolen. The period was short enough to hold the appellants to be the actual thieves after it had been proved that they were found in possession of the animals. In their defence the appellants simply denied stealing the animals, inspite.of all the evidence indicating that they were found in possession of the cattle soon after the theft. Their denials were properly rejected as unreasonable. Their convictions were quite proper and there can be no cause to interfere -with them. . . . . . . . . .. . /2 -4 AL 0 .....2... With due respect to the learned state attorney I cannot see how the appellants could be held mere receivers when they were seen with so many of the animals soon after the theft. The evidence on record indicates that the appellants collaborated, to raid the complainants cattle Wound, making off with his entire stock.' : That was why they each started disposing of their illgotten wealth without.:. ven waiting for matters to settle dovi first. Perhaps learned state atforney had in mind the investigating officer's at the complainant suspected 6th and 7th accused who were acquitted.. On the whole the evidence on record leaves no doubt but that the appellants were the actual thief. . The sentence imposed on them' were the verminimum prescribed, by 'law. Accordingly this appeal cannot succeed is dismissed in its entirety • 0 4 Arusha . 0 , •" :.., / 4 0 .', ' _/ c1_ . AG. J U -'/ E 0 20/5/71 , ' • ' /