19750630 TZHC Arusha

M / to IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 214 OF 1974 • ORIGIL RMINALCASE.NO.47. OF 1974 F THE DISTRICT COURT OF U$HOTG DISTRICT AT. LUSHOTO :.. 3ef ore M.M. SEMBOJ sq, ---'---... -------- District Magistr'te CHARLES MHI ----,.1 ------------------APPELL J NT \tOriginalcused) versus THE REPUBLIC }ESPONDENT. \. .:... . . ' •. . (Or'iginal..Prosecutor) JDG ME:NT ... •• . ,__v,'. . .: •-'• .NYALALL, Ag. J.. .. . o'; :• . The appellant narnel A- ES MHINA was charged arid' convicted before District Court of Lus to District at Lushoto with. Cattle .Theft 265 arnd 268 of th P'na-lfCode and was sentenced to..the mhdatory I years imprisonment and ordered to pay shs. 75/- to the complainant s compensation 0 He now, appeals to this Court.aga&nst..conviction, sentence and order0 . . .' . .. . ,. .. . . . .. The facts of the case according to- the prosecution ate wCll outlined in the )udgment of the trial court which I 1uot "The prosecution case is on 3/1/73- pj 2 MICHAEL i'flOPE went to herd some goats0 Whilein thé 1 büshdh gotV .• .... ...... disappeared0 He went home and notified his father P.W 1. NKUPE NYAKI and other villag€rs. The party wtt out to look for the goat at the area Michael was herding them0 In the ' course of the seah Michael spotted iIentified as the accused conveying something in a hj. On challenging the accused to stóp, the ad lthwh .J He (Michael) had shouted to the direction only tQ find the accused speeding to the bush0 The accused dôpped of his hbes ( and the panga he had0 Having identified the accused, the parts' / reported to the local cell leader and later tb the plie after they had ascertained that the contents in the bag wa's goats meat. Subsequently the accused was charged." . . One of thb most important points in thIs case as noted by the learned brother judge who admitted this case forappeal concerns the identification of the meat in the hag It,. was essential for the prosecution to show that the meat found in the hag belonged tc the goat which had disappeared. 10 which the Search party was : loQking .for. All the prosecution witnesses thhthe excetthon:of one i.dioot disclose the basis which made them conclude that the meat in the bag was that of a goat0 The only witness Who did was P.W 3 (MLATWI NSASU) who said:- "While chasing the accused he dropped his shoes and panga which we neized. He slipped into the dark bush and we failed to catch him. We went back to where the hag was lying0 The hag was containing goatzse.t;iThere was a small nock skin of the goat ....." The question to be asked here is whether the size of the'small neck skin" was sufficient to enable the prosecution witness to identify the meat as being that of their lost goat0 ---/2 Mr0 Osinde learned State Attorney•whc argued this.appeal for the Republic. submitted that the prosecution witnesses heng people 'well acquinted with goats, were qualified to.'dentif;y:'he goat.. from the meat and the small skin that was there, and that 'the'appellant would not have run away when challenged by P W 2 if the meat was not that of the goat which the se:irch paty was looking for in the arca. I do ot doubt the qualifications of the prosecution witnessesain matters of goats and cattle, but we "have ...to"ãcdèpt ...that "ours 'is not a world of angels but of human beings' and 'it has been said that to rr i human0 It is on the acepta'ri .....Of' thátfádt that the law requires even experts when giving evidence in cot ,t.o disclose th.e'básis.." of their .opinions. A mere asertion,, of, a fact by a witness, however '.qua1fied, is not conclusive unless the particulars of the basis of such assertion are given. As pointed out by HAIVIELYN, 'J, in the case of HENRY GERVASE v.R0 (1967) HC.D' 129: "The acceptance of these hlahd assurandes by. the "-" Court lays the way open for many dangers". ' 'thirk these witness€Sshould have explained what"was ir:or on the. "small neck skin" which made them sure that the meat was that of the gdat 'thOy were looking for0 The possibility that .th theat'could'heve been of a goat-looking wild animal killed in the hush by the' appellant cannot reasonably he excluded. The appellant coi1d have unl.aw ..ully hunted and killed agame anitnI' ich could' have led' hini to run away when confronted by the prosecution witnesSe . o I am fully aware that this possibility was not raised by the appellant in his defence at.the trial and not even in hIs memOrandum of appeal. But I t'hink that can be explained upon the, ground that the appellant could have dccided to, avoid raisinq .a, defente which would be inc±irh±ntiinguunder the:"FaunaCCQ tinnifl'.e It seems therefore that the prosecution did not prove its case beyond reasonable doubt about the' identity of the met f'oiin ,n the hag. The appeal ought to be allowed and is hereby allowed by, quashing the conviction and setting aside the sentence and order of cqmpesatiori ippe1lant is to ce released forthwith unlss held fr other lawful cause,. 1 / .i . - F.L. NYALLI, Ag. Judgment delivered in open court this 30th'day of June, 1975 at Arusha in the presence of Mr 0sinde/ Learned ta1-e Attorney. F,L. Nyalali, Ag. Judge 30th' June, 1975 , .... ... '1