19741123 TZHC Mwanza

a'L e4 - IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APJ?EAL NO.131 OF 1974 (Original Criminal Case No. 221 of 1973 of the District Court of Ditrict at Tarime: Before T. B. Nutakyawa, Esq.; District Magistrate) WAISIKU MNJ\.NIO 0 00 00000 00 0•0000 0000 0 0'O 0 000 0000 000000 00 0000000000 APPEI.JLANT O (Original Accused) versus TI-I E REPUBLIC. . ....... 0 0 0 0 0 0 0 0 0 ..... . ......... . .. 0 00 0...... ORESPONDENT 00000 (Original Prosecutor) CHARGE: 1. Cattle theft c/ss 268 and 265 of the Penal Code. - 2, Unlawful wounding c/s 228 (1) of the Penal Code. J U D G M E N T MAGANGA,AGO J0: The appellant, together with two other persons who have not appeáled was convicted of one count of cattle theft c/s 268 and 265 of the Penal Code and one count of unlawful wounding contrary to section 228 (1) of the Penal Code. It was conclusively proved that the complainants 50 heads of cattle were stolen from his boma on the night of 11th July., 1972 at about 11 p.m. and that when he went in persuit of the thieves he was assaulted and got seriously injured. The appeal was admitted only to consider whether the appellants were properly identified as the thieves and the persons who assaulted the complainant. The complainant testified that while he was sleeping in his house he heard a commotion in the cattle pen and went out armed with spears and a torch. He was followed by his wife who was armed with a panga. He flushed his torch and saw six people driving away the cattle. Both he and his wife raised alarm and it was then that three of the thieves turned back and started assault him. He testified that he was able to identify the appellant and the two other people by the light of his torch as they approached him. The appellant and one of the two other people who assaulted him were his distant relatives living in a neighbouring village while the third person, though not related to him, was known to him as he also 'lived in the same village as the appellant. The complainant's evidence was supported by that of his wife who testified that she also recognised the appellant and the4 two other accused by the light coming from the complainant's torch. She knew the appellant and his two colleagues well. Both Mwita Nyaisurya (P.W,3) and Marwa Charema (P.W.4) who were among those who responded to the alarm testified that the complainant and his wife mentioned the names of the appellant and his two colleagues as the people who stole the complainant's cattle and assaulted him before they fled. The appellant and his colleagues denied to have been at the complainant's home that night.. The learned trial magistrate considered all the circumstances under which the theft and assault took place and came to the conclusion that the complainant and his wife had ample apportunity to 'identify the appellant and his colleagues. In my view his conclusion was fully justified as the complairant and his wife knew the appellant and his colleagues very well. The light from the torch was sufficient to enable the two witnesses to identify those who assaulted the complainant as they approached. On the evidence before the trial court therefore, the trial magistrate's finding on the question of identification of the appellant was fully justified. The appeal is therefore dismissed. Delivered this 23rd day of November, 1974. MWANZAO 23rd November, 1974. - R. B. MA.ANG ACTING JUDGE Mbilinyi for the Republic. Appellant - 'absent unrepresented.