19731109 TZHC Dodoma

WP 4C IN TIL HIGH COTJ cT' T \i. hA J 00DO1.A. LT JTJ7LLI.Y[(;. .ION High Court ri.tinal Appeal No.142 of 1972 Original Criminal Caee No. 672 of 1971 Of the iJistrict Court of iingida District at Singida Before; J, Mroso.. .......„”, Resid3nt Ma ictrate Nhulis/oNantau .............. Appellaflt (iiinal :ccused.) IYQrsus, The Repblic... ......... ....... Respondent (Original rosecutor.) Charge;—Cattle theft c/ss 265 & 268 of the Penal øode. LJJLiLL/ IaANft, A. Appellant appeals from a conviction of cattle theft and a sentence of three years imposed under the Minimum Sentences Act, 1963. .. The facts of the case were briefly as follows. Sometime in April, 1971, Chief senge(P.W,1), the cornplainant, was informed that fifteen of his cattle; which were being looked after by one Singu Mahona, had beeh stolen. He normally 'staped on one or both of the hind leg' o± hicattie with the mark'SN' and he also cut off the ipper tipg of the right ears. After a few days a heifer was diecoered in the' possession of H'bogho (P.\t1,4) and this Mbogho related that the heifer had been broght to him for keeping by the accused who was his brother in law. This was confirmed by anothr itnese called Iipandwa(P,W,2.) Now this particular heifer was fo'hid by the trial court to bear a distit 'M' mark on its left leg. Another mark near the N could not be deciphered by the court. Both its cars were cut. According to the obsrvation of the trial court 2.1. 1 appeared to vacillate oh whethel' that heifer belonged to lila. It also transpired that this heifer was not one 'of the fifteen cattle which were.stolen in April, 1971 b,ecause according to - P.W.2 and P.11.4 it was sent from the accused's house to 74t house in August, 1970. • P,14.1 alleged however, in cross examination, that another, group o 0f this cattlehad been stolen in November 1970 and hef thought that, this heifer was among these. The first point to consider id whether, siin tha the h'CifQr belonged to P;14..1, 'the trial court was riht in imputing. th't on the appeiLlant. Though the finding that this heifer had been given to P. 1, 4.4 by the accused cannot he i'eaonabl questioned, it seems to me that there was no cogent evidence to establish that it was stolen in November, 1970 as the trial court held. P,U.1 was only given this information by another person who kept this cattle and there is no ind4cation .that he endervoured to.ascertain whether the stealing had taken p3ace and if' so, when eactly it had taken place. In the absence of any confirmation from his informer, his evidence was hearsay and therefore inadmissable to establish the allegation that theft took place in November, 1970. Indeed the evidence of both P.1.2 and P. .4 tend to introduce a re,_, uona`le doubt, for according to these witneeses the heifr wn.s in the accused's custody by August, 1970. In view of tJT.iC, the court wduld be .1.2 up C • • . . . . . . , .2. . . . . * . . . F 1et with no idea as to when theft took place and in such a situation it is solidly doubtful whether an inference of theft could be reasonably drawn. The second point is 7.1hether there was suficient evidence to establish that this heai of cattle holongod to P.I.1. In his judgethont, the trial Nagistrate was apparently in doubt regarding the identification of the alleged stolen heifer as that of the P.W.1-He observed; In the course of the prosecution case it was not clear to rae if the cornpi;:inant, Chief ienge was familiar enough with his own cattle........ The ears in this case both and not just one were cut in the fashion chief Senge does not identify his cattle. It is a pity however that the person who grazes chief Senge's catile, one ingu llahoma, was not called as a witness. Had this witness, Singu been called he' would have disp1led what little doubt there is. i'ionetheless, the, trialMagistrate reached the decision that the heifer belonged to P.' 1 mainly on the ground that there had been no rival claim over theheifer. With respect, I do not think that the reasoning is. sound. Quite clearly a mere absence of a rival claim cannot establish the complainant's frail and unimpressive claim to the heifer with the certainty required in a criminal charge. For all, the court could not in those circumstances discard out of hand, the reasonable possibility that the heifer may have belonged to some one else, that is that it may have been stolen from a different person other than PAW. 1 • As the magistrate remarked ,iiingu Mahona was a crucial witnees and his testimony, if favourable to the prosecution, would have corroborated the complainant's assertion that the heifer belonged to him. In the circumstancs, I. do not hink it is safe to uphold the conviction. I therefore quash it and allow this appeal in entirety. . The appellant is to be discharged forthwith. Delivered in Court at Dodoma. • . •1 . ? D.P. Mapigano, 9th November, 1973. KE I