19750314 TZCA Dar es Salaam

IN THE HIGH COURT OF TANZANIA .AT DAR ES SALAAM APPELLATE tTURISDICTION HIGH COURT CRIMINAL APPEAL NO. 100 OF 1974 oRIGINAL CRIMINAL CASE NO. 83 OF 1974 OF THE DISTRICT COURT OF NEW.ALA. DISTRICT AT NEW.ALA • ' '. BEFORE: z. RWEJUNA .Esq~ •.• District Jl,Tagistrate. RUBEYA S/0 HASHIMU ••..... ~ ............•• Appellant. (Original Accused) versus TEE REPUBLIC o •• o o o o o o o o o o o o • o o o o o o o o o • • Re spona_ent (Ori,ginal Prosecutor) CHARGE: Stealing cattle c/s 268 (1) (3) of the Penal Code. JUDGMENT NYAIALI. AG:.J·. The appellant in this case, namely Rubeya s/o Hashimu was charged and convicted before the District Court of Newala District at Newala with cattle theft c/s 268 of the Penal Code and was sentenced to 5 years imprisonment and ordered to pay compensation of shs. 150/= to the complainant. The facts of the case which were not in dispute between the parties at the trial are thc:'lt a black he-goat . was -Btolen on the 13th April, 1974 from P.W. 1 (Moh med :Manjuya) while pasturing during the day. ~ The following day - that is 14th April, 1974 appellant was arrested at his home by the Police and later taken to Police Station where he was searched and 130/== were found on hirri. The prosecution case at the trial was that not long after P.W.l 1 s black he-goat was stolen on the 13th April, 1974, the appellant was seen leading away a black he-goat. Some animal blood W~$ found in appellant's shamba the following day suggesting that appellant had slaughtered the black he-goat he was seen leading awaYf the previous day. It was the prosecution case that the - black he-goat which appellant was seen lending away was stolen by hin fror::i P. W.1. Appellant defence at his trial consisted in a denial of the prosecution case and a denial of any lmowledge of such .a goat. The learned Magistrate in convicting appellant stated in his judgment: "The accused was seen by P.W.2, and 4 driving a he-goat of the conplainant's description. This was a fe:w hours before P.W.l approached the:c.1 and asked them about his :oissinr,.: goat. He (accused) staid nothing about the ii-icidei:it•. .. • •• /2 - 2 - :-1 h.1.ve held that.he· (;ccused) is known by P.W ,.2.. He Gaccµsed) suggested no reason why they {P. W. 5, 2-~- and 4) could tell lies to land him in trouble~ They testified in a straight- forward manner a.nd impressed me as truthful witness.- I an therefore satisfied th1.t it was the accused who stole P. W. 's black he-goat from the field." With due respect 9 there was one point which the Learned trial District_ Magistrate did not consider in his judgement nnd which if considered could have led hirJ to a different cqnclusion. This point is whether the, black he-goat which appellant wns seen leading away was tho same goat which had been stolen frora P.W.l." The evidence here is merely one of sinilarity and therG was no suggestion that appellant could not have obtained a black ho-goat fron any other source • except fron .P-.W.l.f It is true that the fact ~ho. t aPl)ellant was seen with a similar go 2 t shortly after· P.W .I's goat was stolen casts some susp:Oion on hin, but such suspicion is net enough to support a conviction for a criminal offence. In this oase evidence should bave been given on distance and direction between tho place where appellant was seen with the goat and the place where P. W./' s goat h'ld been before it disappeared. If the appellant had been seen leading the goat in the proximity of and in a direction fron the place where P. W~ s goat h'3,d been shortly grazing, then similarity in this case could have given rise to an irresistible inference that the goat which appellant had was the sane goat which belonged to P.W.l. But as things are 9 there was no evidence on these lines and in such a c 2 .se the trial Magistrate would hold the prosecution case not proved beyond reasonable doubt. Conviction must therefore be quashed and sentence and order of coopensation must be set aside and so it is done and and appellnnt should be released forthwith unless held for lawful cause. Delivered in open court this 14th day of :March 9 1975 in the presence of Shaidi, Learned State Attorney for Republic. F .L. NYLLALI AG. JUDGE