19771020 TZHC Dodoma1

:i"H T.ErE HfGH COUR_~ OF' TAlllZ ANIA • c.. fAT DOD?J.vIA ·- ..~ APPELLA)TE JURISDICTION 1 CRIMINAL AI:1' EAL No., 67 OF 1977 ORIGINAL CRIMINAL CASE No o 124/76 OF THE DISTRICT COURT OF DODONA AT DODOMA ' . BEFOUEi C.G. lYiTENGA 0 -0 0 0 0 O .S. REGIDENT ....MAGISTRATE CHil'!iANGI-U-1. KISATO • • • • • • • ~ ) • • • APPELLANTS C • NGHUWEZI TANGA • • • o o o o o o • o) versus THE REFUBLIC (_1~000000 ti O O 0 • • RESPONDENT .Qtl/l-,B.G~: Cattle theft cf s 265 & 268 of the Penal Code • . 2.'he tw:~ a,J.1pe:::..lant.s were convicted of cattle theft and given thci mi:1.i.. rr.um sentence. From the conviction they have appealed -co th:5.s court. The undisputed fact·s &½ow that on August 3,, 1975 25 head of cattL o were➔ s-'colen from the cattle pen of Pw~ 1 and that on February '17? 1 97 · he t1~aced four of those .cattle to the possessio:.1 of the .second. appellant wl1 o was he.~dtng ·· them along ·,rit11 many othe!' cattle of the first appellant. The explanation ~;bs PGcon1 appellant gave to ~::.im and Pw .2 was the.·:;) all ·the cattle bE;_!...L·:. 6 2d. to the first accused. On their order he J.ed them to see the first accused. On the way, howevE•l', he double,: up and dir:2.ppearecL After nirJit fall he and the vill2.ge chair.n2.::: acco::ripanied Pw.4, a.police constable to the house of the fir Gt accused wherG they arrested him. The versj_ons cf the complainant and the police constable differ as to what explanation the first accused gave to them. Accorcling to the :former, he had bought two of the four head of cattle at an auctio~".l-while the other . two had been·entrusted to him by Pwo3 h1s uncle,, That of the latter was·that Pw.3 had ontru,-::·i;<:;~~ all the four animals to him. Pw.3 in his evideric e catsgm'.'ically denied. to have entrusted those -cattle to the first accused. The accused in hi_s defer;.:; 9 testified the four head of Ca ·t-'u-lP._ ''-.~rl 1 •v,.-,,_ ~··-·.l.:~•-.•,c,•;-cd ~ L'Lr.:) .1. ... ......., .... to 11-im by P-1,r 3 ..;..,, the month of .~ ..,, ..,___ ,,_ .... _ t.,...,.. J .... ~ ...Lll.L r-i ~J. · A:ugust 9 1975,, HL:! l ..ncle, he ,-.aid~hr_::,c: p:;_nobably handed him the catt.l.e to put him in trol:,ble, as they had not been on friendly te:rm::; ~ irriore :i. s in fact ag1'eemen t tba t; as at the time of the t1~iaJ. reJ-c:1.tj_ons between therrf were bad and, to use the word of P1i·J'. 3 ~ the first accused was his enemy. It wou-ld. appear tt,_at thc:i f'iJ.~s-1, accused. 1 s deceased father had left a lot of ca<;tle bo~:1 ;11d and the8e had been taken over by the accused -c,~t not w1thout bitt1Sr grumbling by Pw.3 claiming a _sh.a.re of the inheritance. The s0-cond accused in his turn testified his ~· )le hc.. d been merely that of herding the cattle 1 as the fi:tct accused 1 s employee~ The first. accused called two 1·ti-tr~c:::::::2::., iJ:hey both said they had seen Pw.3· entrusting four head of cattle to th,J first accused, •••• 2 2 As very rightly conceded by the Rep1.:blic to tl1e submission of the learned 2.6.-,oca.te for beth the appellants, the evidence against the secc:r. J a:cused was inouf:fic ient for a conviction. He was no IL<:.'re ·i..han the llnrc:r:};·o,i:~ of the first accused and the only incu.lpatory·fact :in relation to h~~:·_1 is the act of running away. That aJ. one, with re,3ps ct to the learned senior resident magistrats_. 8.S h_ thenw~1s:, cannot be a sure basis for convicting io.c, that act was 110-'c necessarily· incompatible with this· accused's irino·<?ei·i:ce·~ Accordingly, his appeal is allowed and it is ordered he be forthwith released from oust oc.~y, :Z'"~::·:· . --·~:~1e to the first accusodf tl10 trial court found t}: ·. ; he had given different stories from which it proceeded to i.nf er guilty Mro Chambakaro has howsver countered that his client gave only one stateme.1 t and if there is any incosistency that is the responsibility of Pw.,1 and Pw.4 Mr. Alir:iwike argues on the other hand that the accused gave a statement on two occasions, the fj_rst before· Pw ~ 2 and the second before Pw.4. The record sl1.ous, however, that Pw.2 was present only when the second accused was confronted. Tl'.8 first accused was arrested much later and in the absence of this witness. It is clea~ from tne record his arrest wa2 made by Pw .4 in the presenc c of Pu .. 1 and t.c½.e vi.1_lage chairman who did not however t,;.stify" According to Pw .1 the accused in answer to the village chairman said he had bought two of the cows r~t an auctio;~ and the other two had been entrusted to him by Pw .. 3 o It r:;,Jcmo to me that there could have been little occatdon .,cho:ccaftor for the accused to give another statement to Pw.4 ancl th.'1.ii Pw~·l mid Pwo4; in their different waysr were gi-v.:..~g an account of the same occasiono Tb.at they gave d iffercr::c versions could not be blamed on the accused. He l:as ho,-rnver said in his defence that all the other animals ,1er0 brought to him.by Pw.3. In -,-::.:~.- of the differing version::of J?w, 1 and Pwe4, his versior1 should have been accepte:l. It :follows +he trial court misdirected itself when it hrc'.~/1_ -~d the defence witnesses as liars on account of their mention:l.ng four head of cattle. The second defem e witness uaB labrJlled a liar also because he claimed to be the cell le2>c1.cr of the accused persons whi1e Pw .2 had said he ·was the cE:.J. l lS?a:ler. A.sain.; this was a misdirection fo.rlw.2 only said ha uas a celi leader of the village where the accused lived, There nm.st have been numerous cells in that villaee ar~d the impression to be gathered from the evidence of Pw"2 5_,s that the accused CaJ.:.7.G under the juri.:diction of a::1othcr C(Jll le 2.der. The learned state attorney f'..as rightly observed that . having regard to the state of hoctiJ..i ty -'ch2.t existed betw8:::.::1 the first accused and the ?w.3 the latter could not have entrusted any cattle to the accune(:.;.. The.t would be so if relations were already estranged in the month of August, 1 975 o The record dc:e s not how~·•... ::-r Fihed much light to be - ~.-:hen the hostilities started and for all 011:; may know they might well not have f.'tartc:1 .-. I migi t observe that_, tho 2.ccused enviabJ.y being the owner of a big h-.~ 1 ~::, only a srr::::J. l f!'B.ction of the cattle stolen having been found ir1 his pcissession an:l c:~ very considerable pGriod having elapsec1J) hG could not in the firct pl8.ce have been convicted of the theft of those cattle. J~s · for being a guilty receivf::c I ~--, , J.cubt if th0 lower cmfr•-:;; on a proper direction, would hav(1 convicted-. Qu:. . te apart from the period being probabJ.y -~oo long for the ·1.octrine of recent possession to apply_, ~-·'; was not inconc::ivable for the accused to have rec.3:LvGrt thoc,~ anL.als from his uncle, not-..ri thstanding the ~ .-,,-~ ·~ ··-:- · ·· · - - :.'-' I ~:hj:r~:: !:..s should hav1;; ·been IZ~:r•::J,i tl:o be:11 ,fit ·0·1. ( ·_,, ., ,. • •.. 3 - 3 Accordingly; his appeal;. too 1 is allowed• He should be set at liberty. · P. M •. ,JONATii.AN JUDGE Judgment deiivered in open Court this 20th day of October, 1977. ?41w--("' P. N. JONATHAN JUDGE