19750704 TZHC Arusha

V IN THE HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGH COURT CRIMINAL APP AL NO 203 of 194qc ORIGINAL CRIMINAL CASE NO0 23 OF 1974 OF THE DISTRICT COURT OF MBULU DISTRICT AT MBULU Before P.N. Mosha, Esq., District Magistrate MA:3AYS/OAMNAAY OOOOOOO.00OOO,2OOOOVO.O.APPELLANT versus V THE REPUBLIC • 00000000 0 00,00 RESPONDENT CHARGE: Cattle theft c/ss 268 and 265 of the Penal Code0 JUDGMENT Jonathan, J. The appellant, NASAl ANNAAY, was convicted of cattle theft, c/ss 268 and 265 of the Penal Code0 He was given the minimum sentence0 The undisputed evidence shoWs that the complainant woman's bull '. disappeared while grazing and that some five days later cting on some tip-off she traced it to the house of one MUNA (P.W.3). It was the prosecution case that, on the mètdal night at about eight O'clock the appellant and one BOMBO who had since disappeared drove a calf and the relevant bull to the house of MUNAO This is to be found in the evidence of MUNA himself and that of his daughter, ' V HAWU V(PW2) V V According to MUNA, apparently a very old man, the appellant VV and his colleague BOMBO asked for a plade at his house for themselves and the two animals until the next morning when they would take the V animals to the cattle auction0 On the next morning the bull transpired to have sustained a fracture of the leg and they could not take it to the auction then0 They took the calf away and said they would return later for the hull. MUNA on account of his age had poor sight did not recognise the two people0 However, not only did P.W.2 fully bear out the account of her father but she was also clear that she had recognised the appellant as one of the two people0 It seems that both that evening when there was plenty of conversation between her and the two men and on the ne,t morning when they took the calf away leaving the bull behind, she had had plenty of opportunity to be sure she recognised them0 The two men did not return for the bull as they had promised and HAWU became suspicious and reported the matter to the cell leader0 The complainant later came to their house and identified the V bull0 The appellant in his evidence said he did not spend the material night away; he was at home with ) 0 W.2 and D.W.3. Very significantly, however, both these witnesses, one of whom was a brother and the other a neighbour of the appellant, said the appellant was not with them on the material night; he was away and did not come hack until the following day. - The prosecution case depended mainly on the account of HAWU C V The appellant conceded that both she and her father were not ill-disposed towards him, but he alleged that there was a pre-existing grudge between him and the complainant who was both his relative and neighbour, and that the l a tter had induced P.W02 and P.W.3 to fabricate against him. However, the trial court, for good reasons, was not so persuaded and convicted on the strength of the version of the two witnesses. They had no reason to lie against him, and considering the ample opportunity HAWU had to recognise the culprits, whom she had not known, she could V not possibly have been mistaken when she said the appellant was one of them0 The alibi of the appellant as demonstrated by the evidence of his own witnesses, was false and was properly rejected. Accord:lngly, I am satisfied he was rightly, convicted0 The ppea1 is dismissed in its entirety0 Delivered in Court at Arusha this 4th day of July, 1975 /cwm (P M. JONATHAN) JUDGE