matemanga mchafu vs republic 1975 tzhc 1 3 december 1975

IN THE' HIGH COURT OFTANZANIA AT TABOR A. APPELLATE JURISDICTION ^ ■'nr. ' ;T-,-r >■“ i’ • V HIGH COURT CRIMINAL APPEAL NO. *79 OF 1975 (Original Criminal Case N o .69; of lt*74 of the District ' 6our-t of Tabora - before L. •A.', A. ^Kyando, Resident Magistrate) "MATEMANGAKCHAFU i ....... . APPELLANT . ^ J*‘‘ v.i (Original Accused) •- J . n r - '. . . . . • ' , yr, f . versus - • ;;/ ‘ ‘ft* J " ;— . ‘'■" " "• ■ THE rtEF'USLTC ........................ RESPONDENT (Original Prosecutor) ElHARGE:•Ca'ttlfe theft c/s 268 & 265 o f the Penal Code, Cap.16 Vol.Ifpf the keyised Laws. •- .. v" ■ ’ v • j •'" : ,V _ . '■m , 000ooo00000 r' 1 r *' f;:. r J U D G-M E N T SISYA, AG. J . / ;jr 'J -x-j The appellant was convicted of cattle theft 'and wasJsentenced to five years imprisonment. He is”now““ Appealing. The ease.against the.appellant’ 1© that on 11/2/74 at about . a. . j J )" ^ _ j ' 1/_ 2.CO p.m. he 'arid another-person who jumped bail and ‘absecorided - * ’ • . y ■ -r . .J. I } r • ' in ;the cour$6/of' the-trial were'fotmd in ';fhe ,Uramfra forests with ‘ .-•yx?':--: -f ,,, .'!■ ;“ >s,; .. A.- some stolen ,;cattlefbelonging to one11Ramadhanij Sol^zi (P.W.I),~ by the •ebmpl ainant?Thims elf and other persons who as si's"ted 'him in trackirig the anim als, one of whbm was. Maseile, Meza (P.W.2). •J ’’ ;'v‘ "^ ' :■ r ! ■ j, ... It was: ridt disp'uted that seventy heads of cattle Were stolen , -f. ■ '^ .. ~3. -. ■ .• , from the;*complainant'? s ,cattle boma on iifte‘ ;nigh.t of 10/2/74. When the' appellant, and his compnaion saw” the complainant and the -others approach they, that is the appellant-and his companion, took to their heels leaving the'cattle unattended.• The complainant '••-i.' Masele (P.W.2) and others gave chase. They, however, managed to apprehend the^appellant despite the laters* efforts to wade in the apprehension by brandishing a bush knife. The appellants companion Shabani s/o Maganga, managed to escape. Masele never theless Itv£ recognised him i.e. Shabani, because to Masele* s own words, ' f •• "he (Shabani) is my neighbour arid I readily recognised him.” After his--appr-ehenslbn the. appellant confessed to the • complainant and Masele (P.W.2): that*-+ie, appellant, 'and two others, namely Shabani and Chunuzi, had stolen the cat€le; that the person who had escaped was Shabani; and that Chunuzi had already gone ahead with some of the stolen animals. Fourteen heads of cattle were recovered immediately, Thereafter, the appellant offered to lead the complainant and the others to. Kakola where the rest of the animals had supposedly beeh^driven. On their arrival at Kakola village they first of all contacted a local leader of ten houses. Before, the*said leader of ten houses who, incidentally did not testify at the trial, the appellant confessed'' again“to having stolen ,the complainants cattle together with <tv/0':other persons i Thereafter,*the appellant::led his captorS; to the house of Chunuzi. 'They found Chunuzi.rs wives but Chunuzi himself was not there. ?he appellant, asked Chunuzi's wivestwhether Chunuzi had arrived with some cattle. The reply 'D:.V'v i . was in the negative. Attempts to find Chunuzi and the cattle on the following day also failed. Eventually, the appellant .w^s handed over to the police- and in all the number of heads of cattle which were recovered is forty-five* , ... ; The appellant in his defence tcld 'the'ttfial .dourt that on the day of his apprehension he was on hie way from Kakola village where he had gone to visit his nephew who did not give evidence at the trial. He had a long knife which he bought at Itetemia. When he met his captors they said to him "You} why are you having 'ttvis long knife?” After telling them that he had bout it at Itetemia they wei on to say, "These with long knives^are.the,thieves." Thereafter,, the ^alleged that he had ^stolen some cattle*. When the appellant asked them where the cattle were./they began to assault hinj... . Later they, including :the appellant, set off :ifor Kakola village to go and se.e if. their cattle were there. They arrived there at f . ^ »A » * * a. ’ ab>out lloOO a.m. and met a deputy leader pf ten houses, on^rMakomba Sambayu, who did not testify, The appellant's .captors then ^alleged that he, appellant, had stolen some cattle and kept, them at,-the hous of M.aganga. Thereafter,^they went^ to Maganga/s. house (.but(np, cattle were, found. They went, .to Maganga^ s house again..on tfye following d.ay but notcattli were found.. Eventually he was, handed .ft f * r■» .>r, *■;<• i ; «{ . ^ tv . <r ' pver to^.the police. ^The appellant d.enied ^stealing any cattle*. . The learned resident magistrate whc^ tried ,the case accepted the evidence of the complainant and R.W.2. He was.satisfied that the appellant and another person were seen with the.stolenfcattle and. when the two of them reaslised that they had been se .n they fled but, ap aforesaid, the appellants attempt to freedom w$s shortlived as hevwas, apprehended shortly afterwards. The learned Resident Magistrate was also satisfied that although the leader of the ten houses at Kakola village did not give evidence the appellant did confess to stealing the complainant's cattle* The trial magistrate the*.,proceeded to convict the appellant. In his'petition of-appeal which was drawn foir hiiti by learned jcounsel the appellant relies on'four^grounds:- Namely:-' r • " 1. That there was insufficient evidence on which to convict the appellant# 2* That the trial court erred in concluding that the appellant was found in possession of the stolen cattle* 3. That the appellant's denial of being found in possession cast so much doubt on what was already a weak case that he ought to have been acquitted. It was wrong to simply dismiss the denial as untrue. 4. That- the arrest of the appellant was not made after chasing him lotly without losing sight of him® A mere passerby, the appellant was confused with wherever was being pursued." In arguing this appeal the learned counsel for the appellant r Mr. Kwikima, contended that there is insufficient evidence of identification of the appellant as the culprit. In support of his argument Mr. Kwikima contended that the trial court was not entitled to find that the catter were in possession of the appellant. More so when the complainant and P.W.2 contradicted each other on a how the appellant was vis-a—vis the heads of cattle which were recovered from the forest. According to the complainant he and*his colleagues found the appellant and his companion in the bush driving animals. According to P.W.2 they actually found the appellant and his companion sitting in the forest and infront of them was a herd of the stolen animals. The learned state attorney, Mr. Ntabaye, argued that in actual life and in the circumstances of this case the versions of the two witnesses on this point could not be said to be different. With respect I am enclined to agree to the learned state attorney's argument on this point. In order to appreciate the true position. one must look at all the surrounding circumstances of the case. In the instant matter it must be borne in mind, that the appellant and his companion and the stolen animhls were found in the bush or forest. P.W.2 specifically pointed out that there were no 6ther persons in the forest except the appellant and his companion. There i* no plausible explanation for the appellant’s presence in the f t h a t time. Indeed in his defence the appellant stated that he was on his way from Chikola village where he had gone to visit a nephew of his« No doubt it is not usual for people who go out for visits to loiter around in the forest. In addition to this when the appellant saw the complainant and the other searchers apporach Yy& took to his heels. In my opinion this fact does not speak well of the appellant if his presence in the forest near some stolen animals was really innocent. /4 In In arguing this appeal before me Mr. Kwikima contended that the appellant ran away because of the violent approach the complainant and the others made. With respect there is no evidence to show that the appr$acb^.by the. searchers was violent and therefore, it will be inproper for a court of law to make an fiG^umption on the mode of the approach. >■ Indeed there 'is evidence of some thrashing of the appellantt'by the complainant«, This was, however, done after a chase and after the appellant had threatened* his captors ,:?with a "big knife,, ’ -';T h e !evidence which the trial, magistrate accepted shows that the party o f ?the searchers were ,led ..to the forest whe^e they1found some of-the stolen cattle by hoof mark^ and this’was in broad day- light/ On my evaluation of the.evidence, like the learned trial magistrate, I am--satisfied thattthe appellant was found 8j < LCt ,. _ *' 'in possession of some of the stolen animals. The discrepancy, ■' in' this d*£scription as. to how the .appellant vis— a—vis 'the* stolen ♦' .■? . ■r t ; _ : 'Ja'riimals were fo,und is, in all the circumstances of this,''case, not capable of raising any reasonable doubt. ■rX ' 'The'fourteen heads of cattle found with the appellant were stolenvonly on the previous night and from the evidence of the complainant and P.W.2 it is clear that they were then still-in a process of being led*from their'cattle'boma,£from ,where they had been stolen to whereever they were being taken-to--or, led. Hardly a day had passed. In the circumstances the trial magistrate was perfectly entitled to presume, which he correctly did, that the appellant was the actual thief or at least one of the thieves. Apart from this piece .vof'evidence, there is also evidence that the appellant confessed' ^td the stealing«, fflr. Kwikima, in arguing this appeal contended thaJL\’s;£ncG the leader of ten houses before whom the appellant is alleged to have confessed was not called as a witness the trial court should have drawn adverse conclusions against the Prosecution. While I agree that there are circumstances when failure to call a material witness may entitle a court to draw adverse conclusions'against‘the party who was supposed to call such witness, this is not a fit case where such adverse conclusions could properly be inferred. In the first place as can be seen from i£he record of proceedings in the case the Prosecution did not deliberately refrain from calling the said witness. Efforts were made to summon him to court but without success because he could not be traced. Secondly, the evidence shows that the appellant confessed to the theft more than once. The first time was when he was apprehended in tht bush and the second was before the leader of /5 ten ten houses# On both these occasions the complainant and P.W.2 were present. Th'e learned trial magistrate believed the complainant and PiW.2 on this point and I cannot say he erred in so doing, ; - On my part even if the confession were to be ignored there would still‘be sufficient evidence on,which the court could have properly ‘convicted the1,appellarytj. with the offence charged. The defence raised by the appellant was properly rejected because"it’Contained nothing substantive and credible. If anything ‘it only consists of material which redicule the •i -- -*> .J •*- ^* intblect. In short I am satisfied that the conviction against the'Eippell'ant is sound as it is supported by cred.ibla evidence. The sentence imposed is the minimum prescribed by statute ^~ , / r • 5 for the offence of cattle theft. v In the final result this appeal fails $nd -it iis..;hereby, dismissed in its entirety. * •’ . . . v Delivered in open court at' Tabora this 3rd day of December, 1975. //•A*/ « .•-E.-’D. SISYA, AG. JUDGE /*'