19760109 TZHC Arusha

IN THE II CTH C01'IRT ZANIA AT .RUSIIA APPELLATE JURISDICTION HIcH COURT CRIMINAL L.PPEh.L. NO. 50 OF 1975 0RIGINAI CRIMINAL CASE 10. 1254' OF 1972 OF THE DISTRICT COURT OF MOSIlI ]ISTiICT AT TIOSHI. BEFOREt K. A. KASS.IM, Esq., District Magistrate ANTHONY NGITOO . .. . . * .. . . . . , . . . . * . . . APPELLANT (Original Accused) versus THE REPUBLIC .. .....'.. ...... ........ RESPONDENT (Original Prosecutor) NYALALI,. AG. .:, . JUDG-EFEENT '.-. ' The appellant ws dmrg,ed and conv±ctd in the . District Court f.Lishj district with the offence of Cattle theft c/es 265 arid 268 of the Penal Code and sentenced to the statutory mim.mulA of 5 years imprisonment. No order of compensation wa md.e. The facts of the ease according' to the prosecution are that sometime in NOvember 1L972 P .W .1' s 16 sheep were forcibly stolieh by two armed Mathai tribesmen whijo being pastured by.P.VI.2. Later the following month- that is December 1972 two of thc stolen sheep were traced and found in the appellant s kraal'. They were two rms which appeared to have been csstratoo ei or the The appellant's dofenc at the trial was that the two rams wore brought to his house by his shepherd boy together with hi own animals which had been grazing under • the care, of the . iBhepherd boy, and he reported the matter to his ton-ceJ..l-l'eader. The Lo.rne trial District Magistrate accepted the reasons.161. ossibi1ity' that the two sheep coi4d have strayed into the ap:p.ollant.':s animals on the pasture grounds, but he proceeded to convict the appellant because the magistrate concluded that apel±ant's failure to explain how the two rams were castrated, meant that the rams were castrated by the appellant or with his approval after they had boon stolen. ( Hwipopo, Learned State Attorney is unable to support the conviction. I think the conviction cannot be supported since there was no 3videnco adduced by the prosecution to show that the two rams voro not already castrated when they came or strayed into appellant' s possession. It was wrong to expect the appellant to prove when and how the castration was done, since to do so is to shift the burden o' proof from the prosecution to the appellant. Appeal .............. 12