19740128 TZHC Dodoma

- IN THE HIG+I COURT OF TANZAIJTh AT DODOM ii y/- ,-S'i APPELLATE JURISDICTION HIGE COURT CRINIiL APPAL NO. 52 OF 1973 CF CRIHINAL APPEAL NO. 63 & 69 OF 1973 ORIGfl'LI1 CRININAL CASE NO. 276 OF 1972 OF THE DISTRICT COURT OF WNYONI DISTRICT AT IJJYONI BEFORE L. G. RUGIBANA. ........... DIS'TRICT NAGISTR&TL I. NASE3A MATATURU. , . . , , . . , . . . , ,. O ..APPELLANT VERSUS THE ILEPUBLIC, . . , , . .... ,. ,RESPOJDENT Charç Cattle theft • c/s 265 and 268 of the Penal Code. J U D GIENT The three appellants Nasesa Ntaturu (1st accused), Pima 1.ikubdlu (2nd accused) and Ntonyi Lungwa (3rd accused), were convicted of cattle theft, contrary to sections 268 and 265 of the Penal Code. They were than sentenced to seven years imprisonment. They are appealing against the convictions and the sentences. It was not in dispute that on 14/9/72, the complainant's six cattle were stolen at Nagawa in Fanyoni district. He traced four of them in the custody of Narco Augustin (Pw5), a Dodoma cattle dealer, at Kianga cattle market in i.anyoni. That was on the following day. P. 11.5 explained that he had bought the four cattle from the three accused and this was confirmed by NohamedAlly ' (PW6) who was present when P 1,1 5 was buying the cattle. According to F5, it was the third accused who approached him and proposed to him•that they were selling the four cattle. He then bargained with the second accused and they agreed at a price of Shs. 835/= P1i'5 off ered the money to the second accused who in turn handed over to him a cattle selling permit, exhibit A, which had been issued by Daniel (PW3), a Ward official s P143 confirmed that he had issued the permit to the second accused at the latter's request. P5 and PW6 further testified that during the bargaining, the four cattle were being looked after by the first accused. The accused elected to say nothing when they were put to their defence. The learned trial magistrate found that the accused persons had been in recent possession of stolen property and presumed that the accused persons were the people who had stolen the six cattle from the complainant's borna. On the evidence on record, I do not think that the findings and the conclusion reached by the trial magistrate can be challenged. I accordingly affirm the convictions. With regard to the sentences, I think they are manifestly too severe1 in the absence of any aggravating factors. The Republic is of the same view. Accordingly the sentencep are reduced to five years imprisonment. <7 28/1/74 -1- -