19771010 TZHC Dodoma 1

C A IN THEA HIGH COURT )F TAIZANIA ,SII AT DODONA. APPELLA.TE JURISDICTION CRIMINAL APPEAL No. 163 OF 1977 ORIGINAL CRIMINAL CASE No, 519 OF 1976 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SLNGIDA. 3EFORB ]:.T'r. EGJSSA . RESIDENT MAGISTRATE NUNGUJE S/0 NGTJII . • . . . . APPELLANT versus THE REPUBLIC . . . . . . . . . RESPONDENT CHkRGE: Six counts of Stealing by agent c/s 273(b) of the Penal Code. J U D G M E N T M'1AKIBETB • J. - - This is an appeal by Munguje Nguli against both the conviction and sentence on 6 counts of stealing by agent c/ss 273(b) of the Penal Càde. It was alleged that on different occasions during the period extending from 1970 to 1975 the a'pellant stole some 6 head of cattle and 2 donkeys which had been entrusted to him by six villagers. Evidence was adduced through each of the six persons alleged to have entrusted the animals to the appellant. Those who had witnessed the transactions also gave evidence confirming the prosecution story in every detail. On the other hand the appellant denied the allegations in two sentences only. He said 'I bought the head of cattle in question. I bought then from the complainants'. He added in cross-.examination, however, that he had also bought the donkeys and that he infact bartered his millet for the animals. He called 4 witnesses whose evidence tended to support the story that he had obtained the animals in question on tarter basis. The trial court found ihe prosecution witnesses truthful and convicted the appellant. On the evidence on record I see no basis for returning a different verdict. Apart from the qstion of credibility for which they lower court was in a better position *6 judge - there are additional features that tend to strengt4em the conclusions. Whereas Dw. 4 (Hamisi Athuiani) deposed to the effect that he and Dw.2 (Masanja Mwande) witnessed the transaction between appellant and Mkese Mangu (Pw.7) - Thi. 2 made no mention of his having witnessed such. .a transaction and the record does not thow that appellant did even attipt, to put the issue to either Pw.7 or Dw. 2. The story of Dw.5 (Isila Ngun) that he was also accompanied by Dw.2 to the home of appellant where the two found Pw,11 selling his head of cattle to appellant is not supported by Dw. 2. And neither Pw.11 nor Dw,2 was asked on the allegation by the appellant. . . .2 1 - 2 - The evidence of Pw15 which was also daging to the appellant was not ãhallenged in any manner.Pw.15 and appellant are, according to the record, brothers Appellant is alleged to. have kept his two donkeys with Pw15 and that he had informed Pw 1 15 that he had hired one of the donkeys from someone. Apart from him have not challenged- that piece of evidence from his on brother the appellant offered no explanation as to the circumstances of hire that were aibsequently to be converted into the alleged sales As properly observed by the learned state attorney there was no evidence of continuous hunger for a period ranging from 1970 - 1975 to put weight to appellant's allegation in his grounds of appeal that he bartered his millet for the animals because of hunger. For the above reasons I am satisfied appellant was properly convicted in all the 6 counts.. The a ppeal against conviction is accordingly dismissed. The sentence of shs. 100/- fine or two months imprisonmait in default on each count. is fully justified by the circumstances of the case. The appeal against senterxe also fails.. . Dated a t Dodoma this 10th day of October, 1971 r Pi(k, N. J. 7hKIBETE JUDGE.