19760121 TZHC Arusha

IF THE HIGH COUHT Oi 'JiJT'L.'Ii LRh5SHJ. Al 2ELL'.TE JURIDICT1ON HIGH OOUT CRIi'iII'TAL ATPEAL NO. 108 OF 1975 • . ORIGINAL CRIHINAL C-ASE NO. 238 OF. .1974 OF THE' DISTRICT COUTh' OF T1NGA DISTRICT iT TANGA BEFORE: T. M. I. i'TG.ITkMI, Esq., District Lg'istrate . . . . ....... , . . . . .. . APELL!NT. SIJ'JON ISSA •. . . . . . . . ••. (Origiril ACCUSed) vo.Psus. THE REU]LIC . . . , . . ., , . ,,, ,•, • . RESrO]"DENT (Oiginal prosecutor) • ,•.. . JUD.GEEIIT NYL.LALI 2 AG J The pcll'n ae chorocL and COX1V1OtOCt in the ditric court Lf .Pn District nth the offence of cattle .'thoftc/ss 265 and 268 of the Penal Code and was sentenc. .d to the statutory rjiniuim. of 5 yore imprisom:acnt. He i now oppeal±n t Lile court ecj.not conviction and. •'sehtcmco •:. ', •. The' facto of th case are : vl1 outlined in the judgemunt of the tri7a .ceurt which. I rQspoctfu1ly 'quote: Acordjii to the prosecution caso on the day in question, th:.t is .12th April, 1974, P.hI. Nelson Nabule. had tied one of his she-goats on a post oatsidc his 'house at Bui:.'ba Estate. ' At ahout'4 p.m. •the sane day. the goat got stolen. The' oat had a kid'. but the içid ' was ;loft behind. I.'aeodiatoly the 1.1.1 iniorriod his 'neighbours of, whet he.d happonod.. One ANon Ire? % . ••' then accompanied the P.W.I in sorch of the missing goat. :Phc. soil vis wet and thus foot prints could clearly 'be soon prOceeding from where the •c;at was towar a bush. So the, P'.W.I and P.7.2 followd the footprints for about 2- miles. when they reached. the house of one Ten Cell Loado' by the na.eeAli Llifa (P.W.3) They then enquired fro..e the ten cell leader if he had seen anyoneacsing 'with a.oho-Toat. Tho'Ten Cell Loader conitrmed mat he had just seen someone with a oea and iflC:G tno man hack even asked him of i,h.... ej Lo Mawii and he ieo cir ccd hia. So tho'cn Cell lcadcr hcn joined tn party to".'e.rds imisaini. On arrival to .P;iasctini the accused w.s soon holdiiig a goat..Iith hira was • one old Macni 'br the memo of Moycca (P.W.4). The accused who i.cracd'intoli identified by the ton cell leacor es be one wno naa passed with a goat. a mis houso anc who hag. asicd for the, way o jIasaiin.. .. 0 2. The Ton Coil bade!, 7.boo id iifiA bhe gort whch the. acbuscl wds holding as: the ,saio ono which the accucod. ndpac:ecl \rih1 o hi hous. The r 1.1 thoxm abs:ö''identifi.od. the.. goat. to .:io,,th ;bne stolen ......fro;c his. hr)tts o AccorJing to the .Isai tuc. acusudwastring: ho sell the.goot to hth but he • ..had noticed that the goat reus'b have had a kid, co he aeked h'io cocuec.d bh.. whoroaboubs of the 'cid • hut the accused said that the kid had escaped into the ounn. SQ bee ore no had agreed to buy the goat the 2.1, 2. %2 and P.i,3.arrivod.... . . . ... . . • In hi own sworn evidence in defence, the accused d.o.iod the cnargo. He told the court tho;G on the clay inquestion ho had found the goat in question lost in a sisal plantation. He C ized it and though; that who goat belonged o the aoai (f.T.4). So no GO0L it to thc'.P.Wi4.. Ho.tiaen asked the. P.W.4 if the goat belonged to kin but th P..J.4 replied. that the goat did not belong to hiia • :. but.kriew it belonged to soJ'aoono ho. know. So the sccwcd oaid, h i'oft 0oo'u in Li.. cue ho3y of tho'2.,4'. Bat before ho ioft the. 'place, the '.i, 17 and. 2.i.3 arrived and accused nm of having stolen it". 'Now:,, the eiost iiiportart point in this case is whether the appcllan was offering the goat for sao to P.W.4 when ?.V1.2 and 2.e .3 arrived. The, trial court found that atho appellant wassolling the goat to 2.7.4 at th.: tine. Ih his, potitioi of apDOdl q . the appellant conplains about the .c9nclusion 'of ilic trial court. mat I see no basis for • .ths .corlplaint since the evidence of .W.l, 2.7.2, P.7.3 and I .7.4 is fully in agroenont .that the appellant was offering the goat for sale and the appellant did not I challenge that evidence in his coss—oxaaination of those There \TS , h.aoref ore 'nero th.:r,n 'anpbe evidence to support the conclusion of the trial court.'.. .Rc was therefore rightly convicted of the offence, and' since the sentence, of :5 years jeuriooa'.'.oiit is the statutory ninielum, this appeal is die 71i55Od in LLO onieroty. - bM/ CI TT' ' •. .doliverc:d in open Court this 21/1/76 in the pros one a of MrS. 'IUay, State fttorney. VA., tj I (F. L. NL'LELI) F LIT/11T 1:111 IIG .•'T JUDGE.