19750207 TZCA Dar es Salaam

• J ~qµ)~·· IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NOo 195 OF 1974 ORIGINi\L CRIMINAL CASE NOo 112 OF 1974 OF THE DISTRICT COURT OF MBEYA DISTRICT AT MBEYA' Before: W.J. Maina, Esq., Principal Resident Magistrate EDWARD ANDULILEoooooooooooocoooooooooooooooooAPWELLANT verstls THE REPUBLICooooooooooooooooooooooooaooooooooRESPONDENT CHARGE: Cattle theft c/s 268 and 265 of the Pen.al Code. MWAKIBE'I'E, J. - The appellant Edward Andulile 1,Jas charged with and convicted of c2ttle theft. 'rhe particulars of the offence were that on the 25th day c';f January 1 1974 at about 160 00 hours at Air Port area '-"d.t.hin the:: District and Region of Mbeya, he stole two he\rds of c.-=:ttJ.e vaJ.ued at shs. 1, 200/- · the property of one MWAMBENJ-P,. S/0 MZENGAo There was evidence that ti,·10 bu11.s - the property of the said MWI™BENJA S/0 MZENGA were s~'-aughte:c:2d by one Elisa Njau, a butcher -;,on 26/1/74. Njau (P\\To2) informed the Court that he bought the b,;o bulls fror.1 the appellanL And in support of the co!ltention -· ·NJ au produced a document alleged to have been written b:/ the appellant in the presence of a witness one AZADI MWANSASU (PW.5)o The document stated that the appellant had sold tvw bulls. to PW.2 at shs .. 800/-. The signatures o= PWo 2, Pl'Jo 5 nnd the one alleged to belo:.1g to the appellant appear on the documento J\tJpellant did not cros 3-examine on the doc;_unent nor did he touch on it in his evidence-in-chief. It was only during cross-examination by the prosecutor when appellant denied he wrote the documento He said the name iunon appearing on the document was also not his 9 Yet, PW. 5 confirmed, he had witnessed the writing of the document at the appellant's requesto I ain satisfied there was adequate basis for holding that the alleged-d.ocument was genuine and that it was appellant who wrote and gave it to the said NjauJ There was no evidence to suggest that two bulls other than the ones alleged to have been stolen from MWAMBENJA had been sold by the appellant to Nje.u. (PWo2)c There was in addition the e~idence of Michael Mwambenja (PWo3) a herdsboy to the effect that appellant had collected the two bulls, in his presence, fro~ the pastures, alleging that Michael's father whq incidentally, is a relative of the appellant - had authorized the appellant to collect the two bulls - on the date in questio? - 25/1/74. The evidence of Michael (PWo3) 2 was not challengedo In the circumstances, I agree with lhe finding of the learned Magistrate that it was the appellant who collected the two bulls from the pastures and later sold them to PWo2o And since there was no eevidence to suggest that he had been authorized to collect the bulls and sell them as he did to PWo2 the appellant was properly convicted of the offenceo The appeal is accordingly dismissedo As for the sentence of 5 years - it is the minimum prescribed under the lawo It is hereby confirmedo Delivered at Dar es Salaam this 7th day of February, 19750