19730503 TZHC Arusha

Af HIGH COURT OF T.ATTZATTIA AT ARUSHA APPELLATI JURI$DICTI O'T /. )GT:T. COURT CRIMThAL .A1PAL 386 of 1:72 Nb / ORIGIA CRIMPTAL CASE NO. 1 of 172 OF TJr DISTRICT COURT OF MOSUI DISTRICT \( ./ AT MOSIlI, 10 Before J.M. Mackanja Esq0 Resident Magistrate Haji s/o Ahdu Apellant (original Accused) versus The Republic Res aondent (original Pros0) 20 J U D G M E N T This is an appeal aiainst conviction and sentence on a charge of cattle theft. The complaint lost two cows on the 28th December, 171. One of them was grey with a white band stretching the whole length of the backbone; the other was black with a white rpatchbetween the limbs and. the trunk. Both :.ere pregnant. A search was made and the appellant was found selling meat of an n.mal, the skn of which corresponded with the description of the black cow and around the aaellant's butchery there was a premature calf In a sack. The aapellant was later s1autering an animal that answered to the discreption of the grey cow. The police arrived before he had skinned it and when this was done in the presence of a police officer there was discovered the foctus of a calf about 23- months old. The skia of the two animals were produced in court and identified by the complainant, 40 The apellant's case was that he had bougt a black bull from D.W 3 on the 2th Deceither, lG71, for shs. 375/—. This witness supported him and said that he was present when it was slaughtered. The appellant denied the finding of the foctus of a calf in the ulcinity around which the animal was slaughtered and said that there was another butchery nearby. As to the grey animal the apel1ant stated that it was given to him to keep by D.W 2 four years before; that it had borne one calf and was afterwards barren, it became sick and after consulting the owner he slaughtered : 0 it on the understanding that he would pay him shs. 360/—. D,W 2 is the appellant's nephew, it should be noted that D.W 4 who slaughtered the grey cow said that it had a pregnancy of about 23- months. Assuming that there was some doubt as to whether the black animal was a cow or a bull there can be no doubt that the grey one was a pregnant cow. This refut€s the case that he had slaughtered a barrne cow. If he had done so it was 60 notthe one of which he had been found in possession. There was ample evidence to identify it as belonging to the complainant. On the overal evidence the learned magistrate could quite properly came to the concltsion that the both animals were these which had been stolen, They were found in the aopehlant'a possession within days after they were lost and the conviction for stealing them is sound. The sentence imposed is the statutory minimum, The appeal is accordingly dismissed in its entirety. Delivered in Court at .Aruha the 5th clay of January, 173. 70 sgd. (COEO •Brarnble,) J U D G E. /Kimatluj, F 9 C. -0 ~ - I,-- IN TH HIGH COURT OF TUZAIIA AT ARUOHA APPELLATE JtJRISDICTIOI HIGH COURT CRIMINAL- APPEAL NO. 387 OF 1972 ORIGINAL CRIMINAL CASE No. 331, OF 1972 OF THE DISTRICT COURT OF PARE DISTRICT AT SAME Before C. H.. Disa m a t i, Eq., District Magistrate GODSON s/o ESOFIA • • • APPELLANT - (Original Accused No.1) Charge: Stealing by Servant c/s 265 and 271 of the Penal Code. JUDGMENT Bramble, J. These are appeals against conviction and sentence in each of two charges of Stealing by Public Servant. The appellant was the secretary of the Sovavi Lassa Co-operative Society. He was responsible for the money collscte for grinding and milling charges and had received shs 5705/50 up to the 30th August, 1972. On the 18th August, 1972 he was given shs is,soo/= to purchase produce. He was ccustomed to make weekly returns and the return for the week ending 26th August, 1972 showed that he had spent shs 5169/= in the purchase of produce. On Monday the 28th August, 1972 the appellant received a letter (Fxh.1) requesting him.toübmit an account byThursdai 31st August, 1972. Thtws.aday of celebration for Co-operatie Unions. 'Lhe appellant took shs 9872/30: with him to the head office in a bag and left it under a table as because of the festival the Senior Secretary did not have time to deal with the matter. The bag with the money was stolen. From the records produced the appellant ought to have had 10,331/ balance from the money advanced for purchasing produce and shs 5,705/50 from the grinding and milling charges. There was consequently a deficit of 6,164/20. The appellant accepted these figures completely at the trial and gave no explanation for this deficit. in the Petition of Appeal it h s been pointed out that (a) Exh.H, which showed the amount spent on purchases, reflected the transactions for the week ending the 26th August, 1972 and did not take into account purchases for the periods 18th and 19th August, 1972 and Monday 28th August to Wednesday 30th August, 1972 and (b) no account was taken of the paymeit of salaries and the purchase of diesel oil. While this does not explain the alleged deficit to the last shilling it leaves open the possibility that there was really no deficit and raises the question as to whether the prosecutir'l had proved its case beyond reasonable doubt. The pnt was not brought to the attention of the txial magistrate and he did not direct himself on it., In order that justice should be done I gave the apéllant leave to lead additional evidence by 0rer daed the 2nd January, 1973. He called as a witness Commjttee member Of the Society who testified that he was prsCnt when the appellant made purchasee of..o.r shs 5,000/= betveen the 28th and 30th •Augst, 1972 that it was within the appellant's power to p.a' slaros and by diesel oil for the operetien of.tNe mills prom mories in his possession. The Republic way have ought 13 ve to.,reut this evidence • but this was not done rd so TEind that f re are grave doubts as to whether ti are was ny dcficJ, .... - 2