19771020 TZHC Dodoma 1

hj t,, filyfc-T- -fA-Mo liT TEETE HiGH COURT OF TAIJZAIA AT DODOMA APPELLATE TURISDICTIOM CRIMINAL AIEAL No ,. 67 OF 1977 ORIGINAL CRIMINAL CASE Not, 124/76 OF THE DISTRICT COURT OF DODOHA AT DODOMA BEFORE C G, NTENGA .5. REIDENTJJAGISTRATE CHIi'JANGHA KISATO .. . ,.. . . APPELLANTS NG-H[JWEZI TANGA 0 0 • • versus THEREFUBLIC 000O00O , 0O ..RESPONDENT CNARG-E: Cattle theft cis 265 & 268 of the Penal Code. J U D G IvI E N T t\1'TA rrT A r' T d ui.a ih -uN . C) The two apeliante w e r e Q nvi of cate theft and given the minjjnum sent e nc e. From th e conviction they have appealed to this court The und:isputed fact thow that on August 3, 1975 25 head of cattle '•ire stolen from the cattle pen of Pw.1 and that on February 17, 197 he traced four of those .cattle to the possession of the second appellant who was them along with many other cattle of the first appellant. The exIarntion second appellant gave to Lim. and Pw.2 was that all the cattle be..çod to the first accused. On their order he led them to see the first accused. On the way, however, he doublei up and disappeared. After niit fall he and the village chaixwian accompanied Pw4, a. police constable to the house of the first accused where they arrested him. The versions of the complainant and the police constable differ as to what explanation the first accused gave to th. According to the former, he had. bought two of the four head of cattle at an auction while the other.two had been entrusted to him by Pw 0 3 his uncle. That of the latter was that Pw3 had cntrusti all the four animals to him. Pw..3 in his evidence categorically denied to have entrusted thosecatt1e to the first accused. The accused in his defence testified the four head of cattle - scn catrusted to him by Fw r.3 in the month of August 197 Hi; uncle, he raidhcc probably handed him the cattle to put him in trouble, as they had not been on friendly torms There i..s in fact agreement that as at the time of th trial relations between thertf were bad and, to use the word of Pw,3. the first accused was his enemy. It would. appear that the first accused 1 s deceased father had left a lot of cattle hcind and these had been taken over by the accused but not without bitter grumbling by Pw.3 claiming a hare of the inheritance. The second accused in his turn testified his ole had been merely that of herding the cattle * as the firot acousede employees The first. accused called two They both said they had seen Pw,3' entrusting four head of cattle to the fi.rst accused, . • • .2 W.. - As very rightly conceded by the Rephlic to the submission of the learned ac.vocate for both the appellants the evidence against the secc:cI accused was insufficient for a conviction. He was no more than the 1rr:o of the first accused and the only inculpatoryfact in re]ation to h is the act of n.nning away. That alone, with reepsct to the learned senior resident magistrate. as h thenwesrn cannot be a sure basis for convicting for, that act was not necessarily'incompatible with this accused's irino'c ç Accordingly, his appeal is allowed and it is ordered he be forthwith released from custody. to the first accused, the trial court found th he had given different stories from which it proceeded to i.nfer guilty Mr. Chambakaro has however countered that his client gave only one statemat and if there is any incosistency that is the responsibility of Pw,1 and Pw.4 Hr. Alimwike argues on the other hand that the accused gave a statement on two occasions, the firèt before'Pw2 and the second before Pw.4. The record shows, however, that Pw.2 was present only when the second accused was confronted. TLe first accused was arrested much later and in the absence of this witness. It is clear from the record his arrest wac made by 1?w,4 in the presence of Pv, I and the village , chairman who did not however testify. According to Pw.1 the accused in answer to the village chairman said he had bought two of the cows at an auct - io-Ti and the other two had been entrusted to him by 1'w.3, 't oms to me that.there could have been little occasiontho:caftor 3 for the accused to give another statement to w,4 and that Pwi and Pw.4, in their different ways, were givLng an account of the same occasion. That they gave differcr: versions could not be blamed on the accused. He has however said in his defence that all the other animals were brought to him by Pw.3. In c - of the differing versionof I'w,l and Pw,4, his version should have been accepteL It follows the trial court misdirected itself when it hrn.d the defence witnesses as liars on account of their mention:i.ng four head of cattle. The second defene witness was labelled a liar also because he claimed to be the cell leacr of the accued persons while Pw,2 had said he was the cell leaIer. Again; this was a misdirection for ; we2 only said he was a cell leader of the village where the accused lived.. There nMst have been numerous cells in that village and the impression to be gathered from the evidence of 2w2 is that the accused came under the juri.:diction of another cell leder 0 The learned state attorney baa rightly observed that f having regard to the state of hoctilir that existed betwec:a the first accused and the 2w.3 the latter could not have entrusted any cattle to the accucei. That woifLd be so if relations were already estranged in the month of August, 1975, The record dces not how'vor Ethed much light to be Then the hostilities started and for all olie may know they might well not have start€L I mitt observô that, the accused enviably being the owner of a bigonly a sitll fraction of the cattle stolen having been found in his possession and a very considerable period having elapsed, he could not in the first place have been convicted of the fteft of those cattle. J.s for being a guilty receiver I dcubt if th. lower court s on a proper direction, would have convicted-. Quite apart from the period being probahl too long for the 'loctrine of recent possession to apply, was not inconcivable for the accused to have rec.3ivod hoc ani:als from his uncle, notwithstanding the .-';t - l I :hir-' ~: he should have --- 'been thO hc1'it o, I •• •3 Accordinglyi his appeal, too3 is allowed. He should be set at liberty. P. I..,JONATHAN JUDGE Judgnnt delivered in open Court this 20th day of October 9 1977. P4 N. JONATHAN JUDGE