19780529 TZHC Mbeya

'!,w (a7 bsri IN IT' H ICE COURT OF ThNZAUIA AT LIBEYA APPELLATEJtJRISDIC TION HIGH COURT CRIMINAL APPEAL. NO 55 OP 1978 ORIGINAL CRTh'iINAI CASE No.283 OP 1977 (o ThE DISTRICTS COURT OF MBEYA DISTRICT AT MBEYA) BEEDEE: T.NM KISUGUILA, ESQ., SIMIOR MAGISTRA 1. . DUSTANI 1iA3\tDUK.A . . . . . .. . .. . . . . . . . •. . ...... . . . . APPEIIANT'S 20 ASUKILE KAHAWA (original accused) versus flIE 4' (Original Prosecutor) OHA.RG: Cattle stealing c/s 268 and 265 of the Penal Code, J U D G M E N T SAHATTA,J. On January 26, 1978 9 the two appellants, whoso appeals I have consolidated, ware, together with one Andavilo Chipewa, convicted by the district court of Ebayc district of cattle stealing, contrary to s.265 and 268of the Penal Code, and each se'te.nced to a tern of five years' imprisonment. Andasille Ohipowa has elected not to challenge the validity of that decision hefoe this court. The area in dispute nt the trial lay in a narrow compass. It ws not in dispute that on the night of May 24 9 1977, three head of cattle belonging to one Anyitike 5/0 Mwaukosi were ptolen. It was the prosecution case the it was the appellants and their co—accused who perpetrated that crime. Like their co-accueed, bo?;h appollsntsprotestod their innocence. The prosecution lad cvideno fran several witnesses, including one Hbj.b&iuman and Iirisa Athuaan, thich demonstrated that the appellants and their co—accused ore und driving the stolen hcd ci' cattle a short intervai of te tI am € had been feloniously taken away from Anyitike Mwaulesi a cowshed I(-- .f isa Athuman, Habib Athuman and a third person managed to arrest ellants, and took them to a police.. station. The three men failed, .owc 'r, to arrest the third culprit as he decomped shortly after their rrira1 n the scene. In their defence the appeflarts claimed that the I jliaC1, aotingto do with the theft of the heady of cattle and that t.ac;y :e r.mtcdtenly arrested as being responsi-bIC for the theft. ..S...S.• .2. - . . U _a,.. :. .- 47 -2- Although he did not expressly say so, the learned district magistrate appears to have been impressed bythe veracity of the story given by Idrisa Athunan and Habibu Athu.man. He accpted the evidence of the two witnesses in its entirety. I can discern nothing on record to warrant This court faulting that finding of fact In thor joint neuornnclum of appeal, the appellants have striven to point out tnconsistencies in the prosecution evidence whIch, in their view v east mQre than a fanciful doubt on their (appellantsT) guilt. I have carefulLy considered those inconsistencies, but in the cnd I have reached a settled conclusion That they do not affect The strength and tmthfulness of the prosecution case. In my view the appellants were rightlycompelled by the learned trial magistrate to carry the cross of guilt The evidence against them ostnblished, beyond sane doubt, that they had taken pa1t in the stealing of Anyitike MwaulesiTs heade of cattle. Thoappeals against sentence are clearly devoid of even a shadoy of merit. The sentence each appellant was given iq the minimum pros- cribed by our representatives in the Karijeo Hall - see s0(e) of the ilininun Sentences Act,1972. This Court has no power to reduce even a day from such a sentence. Both apcals stand dismissed. ': / --------- .SAMATTA JUDGE. Delivered in Court this 29th-day of May1978, in the presence of Mr.Mtaki, Counsel for the Republic. B.A. S M:IATTA HIGH COURT IBEYA 29/5/l978