19750123 TZHC Mwanza

V ( /?/ _ • /~M k IN THE P1GW COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION V HIGH COURT CRIMINAL APPEAL NO0 444 OF 1974 (Original Crimina] Cas' No0 131 of 1972 of the Distrtct Court of (eita District at Geita Efor J., L, Mboncko Esq , District Magistrate) LAZARO 0000000000006000000000 o,,,00,00, 00000APPELLANT • : (Original Ac c u sed) V versus THE V (Original Prosecutor) CHJ'RGE Stealing cattle c/s 268 and 265 of the Penal Code. JUDGF'FENT •' % V V ..'eyidence led in support of the charge against the appellant an V:l V his co—accused who did not appeal was given mainly by.two children ZUZUKUNZA V ZATUZUMBA (P,W.3) aged 15 and JOHN CHANKA (P.W.4) age 8 years. These two children told the lower court that one day they saw the appellant and the second accused with three cows which were tied up. When these children tried to raise an alarm they were threatened by the accused persons and ordered to move away 0 They did so, but on arrival at their respective homes later that evening, they reported to their parents what they had seen. Acting on this report, a party of villagers proceeded to the scene the following day where they saw two cows tied in the bush. Thereupon the appellant was dragged before this party on the allegation that he was the thief0 The cows were taken to the local Primary Court where the owner FAUSTINE KASUSA (P.w.1) later went and identified them0 He told the trial court that these two cows had been stolen from his cattle borne on 29/3. On this evidence the trial Magistrate held that the appellant and his co—accused were the thieves as they had been sufficiently identified by the two children, and further that the appellant's jumping of bail was indicative of guilt. He found them guilty of cattle theft and sentenced them to the statutory minimum sentence of Five I Years imprisonment. The appellant appealed against his conviction0 During the hearing of this appeal, Mr. Butambala who appeared for the Respondent Republic stated that he was not supporting the appellant's conviction because there was no credible evidence led in support of the s prosecution case. The only evidence was that of the two children which was not supported by any other evidence. He added that the Magistrate placed too much emphasis on the appellant's jumping of bail. On the whole.. I think these criticims are well founded. No reasons were given why no adult was called to support the evidence given by these children. The child ZUZUKUZA specifically told the lower court that after being threatened by the accused persons they called one MJVGIRO who came and saw the cattle, But Magiro was not called to give evidence. If any of. the V adults had been called to give.- evidence h4:.Vwou1diVhae.beu1àble to explain why for instance the villagers did not go to the scene the same evening and retrieve the cows and have the appellant and his friend on the spot. I say this because the reason given by the children was hardly convincing. The appellant's - jumping of bail could have been indicative of guilt y but this was not the only possible inference, Indeed it was not a safe Inference to make in the present case because the prosecution case had toe many gaps. V .00000 00 , ,