19741127 TZHC Mwanza

IN THE HIGH COURT..OF ,TANZANIA AT. MWA1ZA APP-ELLATE JURISDIC.ION. .: HIGH COURT CRIMINAL APPEAL NO. 345 OF 1974 ORIGINAL CRIMINAL CASE NO. 662.....OF 1973 OF THE DISTRICT COURT OF MUSOMA DISTRICT AT...MUSOMA BEFORE L.J.R. CHUA Esq., ........RESIDENT MAGISTRATE. MCHANGA NOKWE.... •. .... • Co's...... S•C.•O•O • •. •e..e... ...APPELLANT (Original Accused) versus . V THE RESPONDENT '.•'.. . (Original Prosecutor) V V . - OoO- . V CHARGE: 1st Count: Cattle theft c/ss 268 and 265.of the Penal Code, Cap. 16, Vol.1 of the Laws. 2nd Count: Burglary c/s .294(1) of the Penal Code, Cap. 16 Vol.1 of the Laws. 3rd Count: Stealing c/s 265 of the Penal Code. J1J D 0 E N E N T LUGAKINGIRA, Ago J.: There is no substance in this appeal but it was admitted to have. : second look at some aspects of the evidence. The appellant was con- victed of cattle theft, burglary and stealing and awarded with mini- mum sentences on the first and second counts and 6 months' 'imprison- V V ment on the third count.. On 26.9.72, at about midnight, a large crowd of thugs stormed the homestead of the complainang, P.W.3. Some of them brokeinto his dwelling house and made away with a quantity of wearing apparel including two blankets and a radiç. Meanwhile others entered into his cattle boma and drove away 38 animals. On 11.10.72, two weeks after the incident, the complainant's radio was recovered at the hous: of one Bina. His wife (P.W.7) told the searching party and the court that the radio had been left there by the appellant shortly before th. arrival of the searchers. The searchers, who included the police, the complainant qnd others, actually saw a man running away as their vehicle approached. On the same day, a blaket was found in the appel- lang's house which the complainant identified as his. Again, the seer ing party saw a group of running men as they approached the appellant house. (This appellant was fond of being on the run. On two other occasions when attempts were made to arrest him he ran and successful: disappeared in the bush. It was said that he lived in the bush most of the time). I have carefully gone through the evidence and satisfied myself that the complainant correctly identified the radio and the blanket as his property. The evidence of PW7 about the radio in her house was corroborated materially by PW8 who was present when the appellanl left it with the witness. There was ample evidence that the blanket was found in the appellant's house. I am therefore satisfied that the two items were in the appellant's possession and it,was for him • .;.: to explain how he had acquired the same although not to establish his innocence. The appellánt,-Th' fact, c.hQseo deny any knowledge of them. I think.he trial Magistrate was justified in rejecting his denials. Inthese c1r6unistarces thealibi was .aso rightly rejected. Although the appellant was not found with any of the com- plainant's cattle, I accept the trial Magistrate 4 s reasoning and application Qf. section 23of the Penal Code. The appellant definitely intended the ácti&s of , members o h!s gang although e only chose to have a radio and a blanket. , -Ther.appeal is accordingly dismissed in its entirety. - :'........ MWANZA. K.S.K. LUGAKINGIRA 27/11/74. . - Ag. JDGE - • .: I: -• ;: .• - 4 •;;• *:1. •• :- • .*--* --.