19770810 TZHC Dodoma 1

IN THE HIGH COURT OF TANZANIA AT DODUNJ APPELL. TE JURISDICTION HIGH COURT CRIMINAL APPEAL No • 114 OF 1977 ORIGINAL CRIMINAL CASE No. 497 OF 1976 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SIflGJA BEFORE I.H.M. MAGESSA, . •. . . . RESIDELT iAGISTRATE RAJABU NTANDU ........... APPELL!.NT versus THE REPUBLIC . .... ....... RESPOI\IDENT It CHkRGE: Cattle theft c/ss 265 & 268 of the Penal Code JUDGMENT CHIPETA J. The appellant, Rajabu Ntandu alias Ntinangi tandu, was jointly charged with another (who was acquitted) of the offence of cattle theft c/se 268 and 265 of the Penal Code. He was convicted as charged and was sentenced to 5 years imp:eisoriment under the Minimum Sentences Act, 1972. He now appeals. The prosecution's evidence was that some day in August,. 1976, a heifer of the complainant was stolen from grazing grounds. Later the heifer was found in possession of the appellant. On interrogation, the appellt said that the heifer had been brought there :by one Muna Ningu alias Shaban Hues.ein. The said Muna was then also arrs.ted, and he was the second. accused at the trial. In his defence the apellant said that the heifer in question was brought to his place by one Mjengi who was accompanied by -the second accused. The said Mjeni said that he wanted to exchange the heifer i'dth a bull.. The said Mjcngi. and the second accused then took the heifer to one Juma Ndui. In the presence of one Yona (Dw.3) the appellant exchanged the heifer with a bull at Juma Ndui's place. Later the said Juma Mjengi .was arrested for thcft of the animal. Subsequently th appellant was also arrested. The said Mjengi, however, escaped and he has not been seen thn. The learned resident magistrate accepted the prosecution's evidence and rejected the appellant's story. He then convic.td the appellant as charged and acquitted the second accused. With great respect, I am not persuaded that tht case against .th e ap ellant was so strow as to justify the conviction. The prosecution's evidence is silent on the question as to the circumstances in which the heifer was found in the possession of the aipellant. The llafltrS defence contained far more details than did the proseciton's case. The appellant's defence was in fact support9d by one of, the people he named to have been present during the transaction. The learned mgist±'ate seems to have based the conviction on mere conjecture, and, iñaich isthe more evil, on serious misdirections on the burden of proof in criminal cases. ...2 or ' _ ~ 2 The learned residentmagistrate stated:- find that there is enough evidence to ,rove that 1st accused stole the cattle in qusstion. For he was found with it ! And he he.s named second accused and unknown person to have brought the cattle to him. 2nd accused has denied this. The 1.st accused's defence cannot be believed. For how can the court believe that it is the unknown lerson who brought the cattle to the accused's hone. And again, how can the court believe that it is the 2nd accused who took the cattle.. there when 2nd accused himself is denying this. After all, who will be convibted of cattle theft if every person found with stolen. cattle will state that the same was broght theréby unknown person(s)." This passage clearly shows that the learned magistrate had shifted the burden of proof on to the appellant. It has rereatedly been held -that an acct'sed person does not have ( to satisfy'the court- that his story is true. A court, therefore, does not have to believe the story of an acOised person. All that an accused person need do to be entitled to an acquittal is to give an explanation which raises reasonable doubt in the mind of the court. The above—quoted passage in the learned macistrate's judgment further goes to perilously near suggesting that any person found in possession of stolen goods i 8 necessarily the thief. That is not the law. A conviction based on the doctrine of recent possession can only be justified where the circumstances of the possession suggest that such lossession was unlawful and the accused has failed to give a reasonable explanation of innocent possession. It is my considered view that had the learned resident mastrate addressed his mind to these lega.l principles he would not have arrived at his decision to convict the appellant. On these grounds, the conviction, which inci(ftientally the Republic did not su)port, cannot safely be allowed to stand. It is accordingly qucashed and the sentence is herby set aside. The appellant must be mleased fr: ,cutcdy fot'w.,I' unless otherwise lawfully detained. Delivered in open court at Dodoma this 10th day of August, 1977. B.' b. 6HIP 1 iA TtJDGE.