19720404 TZHC Dodoma

IJTfFL HIGU CCU2LI? OF TAITZf IA APPIIJLAT J1J2.ISDIDTION HIGH CiJ T CHLIüL :IO,l 6 OF 1972 OHIcTIHL C RLTL CASI NO. 78 OF 1971 Of the District Court of hpwapwa District at Iti;jwapwa o Before;- d.P. Kiwanuka . . District Naristrate; Samson s/oKu.senha. ...• , . . .., .• AIY)ellant (Oridinal Accused) versus The Republic ..................... Roseondont (Oriinal Prosecutor) Chare; Wilfully and Unlawfully Injurind Animals c/s 325 of the Penal Code; Cap.16 Vol.1. '1. IIIIZAVAS J. The two appellants were jointly charL'ed with and convicted of wilfully and unlawfully injurin' an animal c/s 325 of the Penal Code and sentenced to mr conditional cIischare under section 38(a) of the Penal 0 ode and also each ordered to pay 150/= compensation to the complainant. Dissatisfied with the convictions and sentences they have come to this court The conviction of the aecuseds was wholly based on the testinony of one, I'.]ZBPJDAD/O tL:iI (P.W.2) and 1L3II D/O LULWDB (13 ,W.3), Ezereda told the court that when she was grazin' cattlo near a water-hole she heard both accused saying that they were ;oing to shout any one head of ca tle among the lot that was grazing near the wa -Ger-nole. accordinr to her evidence both accused persons were with bows and arrows. She did not nowevor say Ghac she saw Ghe acuseds shooting at the bull which was later found with an arrow ving from its shoulder. oli d/o Lusinde (PW3) on the other hand related to the court that she heard the accuseds say:Lng that they were going to shoot PW1 bull. Like zereda (PW2) she said that she did not actually see the accuseds shooting at the bull. It was aftr the two ladies arrived at tneir catle-boma that they Iound that one Dull had been shot with an a:row. They roporGed their finding to their husoand (P,T.i ) co whom they also related what they heard the two accuseds saying about shooting the bull. Wy learned brother Judge who admitted this appeal for hearing' was of the view that the evidence implicating the accuseds with the offence was rather thin. With respect I agree with that observation. The learned trial Magistrate based his conviction on the evidence of the two women(P,W.2 and P..3) whose evidence ho accepted as g that the trial Magistrate was perfectly entitled truthful. I aree to believe the prosecution case and disbelieve the defence 's denial. that they did not shoot the bull. But, as rightly stated by the learned state attorney, estimation of credibility of witness Tiust always be tested against the evidence a(Iduced before the court as a whole - PATL,1957)E0 314. In the present case there is inconsistence as to what the accuseds said just before the bull was found shot with an arrow. Accordinp to Ezereda(P.W.2) she hezt the accused saying that they were going; to shoot any one head of cattle amc the lot that was - • 0 0 0 • • .0 0 • S 9 • 0 0 0 S 0 0 0 • S tI .9 / It- t- 2 - Soneingthegrazed near the waterhole. Noli(P.J,3) who was with Ezereda other hand gave a different story, ccording to her she hoard the accused saying that they werc going to shoot Kibahula 2 s (;.i 's) bull. In his judgeieont the learned trial Begistrato said that he 5,ccepted both ladies as credible witnesses. I fail to see how he could have accerted both stories as truthful when their evidence so clearly contradicted each other. There was no e\ridence what so erer that the arrows found in the two accused s houses roiemblcd the arrow renovee from the bull t shoulder. As to the enei.litj that existed between the first appellant and the two witnesse 's family the trial Magistrate was right 111 OXdL]fliflifl the evidence regarding enomity. But he Should have directed himself that evidence of oneisity 11a no bearing on the guilt or innocence of the accuseds on the charge be:oro the court. The relevarivance of one irid! is only as to credit of Lao witness ?Tii J/C Qh/,& T-J1s. (1956)2b C.i434, in c 1io pres ccse he evidence of oneraity was a doubleLwedged weapon. It could have ted against the jprosecrtion case as well as agaInst this first ppellant. I agree that accuseds story before the trial court was )t particularly convincin g , but it did not need to be convincing to warrant an acquital. In a criminal charge a conviction is entered not on the weakness of the defence care but on the strength of the prosecution case. The convic t ions which are not suprorted by the Republic are hereby c1uashod, he sentences are accordingly set aside. i1ea ccuscd 's are to be refunded their money ifthey have already paid it. N. DOD.OMA 4th April, 1972. Desouza for the depublic. piellants present in person.