19781207 TZHC Dodoma

1' IN THE HIGH COURT OF TANZANIA AT DODOMA h. (€*.-%- APPELLATE JURISDICTION c/f CRIMINJAPPEAL NO, 99 OF 1978 CRIMINAL \PPEAL NO0 OF 1978 (ORIGINAL CRIMINAL, CASE NO. 467 OF 1977 OF THE DISTRICT COURT OF DODOMA) SUJI MAZENGO. 0 0 . Appellant Original ACCUSed) versus THE REPUBLIC, 0 0 0 0 0 0 •• Respondent (Original Prosecutor) Charge: Cattle thefct c/s 268 and 265 of the Penal Code, J U D G M E N T Chipeta, J. The appellants, Suji Mazango and Joseph Mátonya, who appeared at the trial as the second and first accused, which description I will retain in this judgment, werc each sentenced to five years imprlsonment on conviction for. th . offence of cattle theft. They nowappeal, and their app.als have ben coiisolidated0 t .. -. The prosecutions evidence ;;as tht:on 5/2/77 some .22 head of cattle belonging to the complainarft,....Qno Mika Kasiki, (p,W,l) ware stolen0 He then raised an alarm and neighbours responded. T hey then wentab.out..looking for the cattle, Meanwhile., on.. 1C/3/77 the f1rt accud went to the home of one Augustino Cheka (p,W,5). with two cows, The first accused said that he wanted to exchange these cows iiiiCh oxen0 POWO5 agreed, and in the presence of witnesses, tha firct accused exchanged the two cows with two oxen. P.W5 eh.:n kptthecows with SwaleheNjole (P..W.6)0 On the' very same day., the two acused pers o ns went to P.W.6. who lives in the same village as P.W.50 They had3 cows '-which the second adused claimed to be his prOpert' and said that be wanted to exchanqe them with oxen0 In the presence of one Chikali.(P.W.7) P.W,6 exchanged his two oxen with the three cows0 The first accused was not.:: only present bUt actually: took part in the exchange transaction0 Meanwhile, on 6/4/77, the compl..ainent, in the presence of several people, identified all th iiva cows an being. som of his stolen ones. . Subsequently, the two accused p.rsns were arrested and ch arged. .. ... In their defence the accused. persons cienid having exchanged any cows for oxen. 0 Subsequently, the two accu;ed p.rseris were arrested and charged. accused In their defence the . pctSonS denic:cl having stolen the cows and: further , deixid having excha1iqd. any cows for oxen0 -• The learned trial resident macistret. accepted the prosecution's evidence and :.rcijadted that of tht defnco. During the h aring of these apdeals, Mr. Chambakare, learn-:d counsel for the appellants submitt ci that there were such sdrious contradiction. that thc poaa.cutien evidence ought to have ben doubted0 Secondly, he submitted that since the cows were not produced .b.:fde the trial court to be identified by P.w.7, P.w.8 1 and PW O 9 7 it was not certain whether the cows exchanged for oxen ware the same cows which the complauinihnt identified, Thirdly 1 arned counsel submittth that in vi w of the fact that the cows moved from hand to hadthe doctrine of receint possession had not been properly invoked. I certainly find some merit in the l.,arned counselts criticism regarding the rion.-.production of th cows at the tria]..- The cows were all taken to police station, and no explanat. given why they were not produced as exhibits. Indeed,.no police officer was called to adduce evidence on this point. But that alone cannot he fatal to th•. conviction. The question that must be answered es whti r tt caLtle weich the complainant ideatified are those which the apphllan€ or any of them exchanged for oxen or bulls with P,W.5 and P.W.6. To answr that question, one has got to go back to the evidince of P.W.l, P..W.2 1 FW,4 P0W05 and POW9 Acccrdingto P.W.l the.yfound his five :cows. with ooe Swlehe., a reference to P0W06 at Mikese vi11aqe. He easily dentificid all the cows. He took all these to police statin. T. evidence of O.W.2 is Lii Lhy rcovrLd five COWS, three of which were covered from Sualah end two from one Mabwai. This w L tnes2 was wlLh PWl and h acis a. P,W.,l in driving the cows to the police statjon. The evidence of •p,w4 t that t th -home of Mwai p.w.1 identified two dews and -Mabwai told th•.m that the cows . had b en entrUsted to hm by pW,5 POW.5 r..;eciily said that the cattle were his and that he had got .therL from first accused after exchanging them with oxen. ?,W5 iscen as saying th a t the two cowS were identified by P0W01. That evidence eot-red the identity of all the five cows. That.being so, the ndnroduction of t' cows at the trial did not occasion any failure ef justice..mor: so as the accused persons neither disputed the identification of ... ..... ccws nor the ownership of the same, Let me now turn tc the que stiai c -f inconsistencies in the testimony of the prosecutipn witnhsseS0. Itis, I think, well settled that it is not every indonsistor.tcy that renders the evidence of a party unwort - y of belicif. Only inconsistencies on broad .árid material points can discredit tn; evidence of a party. In the words of Sar1zar ?lDiscrepancies in the testimony of various witnesses an materia. or broad joints have to be carefully weighed in arriving at the truth0 But trifling disrepancic-s should be ignored, as they are of ----a a test of truth. Several persons giving their versions of a transaction witnessed by them are- naturally linbleto disagr:- e ~ on immaterial points0 Th.ir expressioñdr memory are - 3 - not the same and honest differenees are easily possible". ("The Law of Evidence" page 50 1 11th Edition). In the case of R. v. Makuzi Zaidi :nd Another (1969) H.C.D. n. 249 there were inconsistencies in the evidence of two witnesses as to how long the fight lasted and hoi far from the witnesses. Georges, c.J. ,- (as he then was) seid: "There were discrepancies in the evidence for the ?rosecutiofl but they are not such as to make the evidence totally unworthy of belief. Whenever withesses testify to quickly mov:Lng ev1its there are 1kely to be discrepancies Inded if there are none, that would be, of itself, cause for some concern that the story had b;en rehe arsaci". In the instant case, there ware discrepancies between the evidence of ?.W.1 on the one hand, and that of P.W.2 and P.W.3 on the, other. P.w01 said that at Mikeso viilacpe, they found five of his cows at the home of Swalehe, while P.W02 said that they found only thr-e aows at Swalehe 'S home, and P,W.,3 said that they found two cows at the home of Mabwai. The real qustions in controversy here were whether the five cows were recovered at Mikese village and f they were identified by P.W,J., and how those cows had found their way into the hands of P.W.5 and P.W.6 Since we have an exDlandtion from p.w.5 and P.W.6 as to how each of thorn got the cows, it seems to me immaterial as to who had physical possession of the cows at the time the complainant went to retrieve them. t might have been a differ'.nt question if the central question had been as to who, between P.W.5 and P.W.6 1 had possession of which of the cows. On the q'aestion of the doctrine of recontpossession, I note that the appaants were found in possession of the cows within about a month after the theft. In my view that period is not so long as to weaken the application of the doctrine for, in my opinion, cattle are not articles that radily change hands. On these grQunds, I am satisfied that there was ample evidence to justify the convictions. There is nothing on which the sentences can be assailled as they are the statutory minima. Indeed, if anything, they erred on the side of :eniency. In fine, these appeals are dismissed in their entirety. 1/Z DODOMA B. D. CHIPETA 7th December, 1978 JIJDGE