19781127 TZHC Mwanza 1

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION . k/ .W . PY HIGH COURT CRIMINAL APPEAL NO.324 OF 1977 CF. CR. APP. 143, 304/77 ' (Original Criminal Case No. 277 of 1975 of the District Court of Musoma District at Musoma - Before L.A.L. Mgonja, D/Magistrate) NYAMBURA D/O NYANGALAMILA . oo•e .00. 000••0 * 00 *00•0•• .APPELLANT versus THE REPUBLIC.................................. CHARGE: CATrLE THEFT, c/ss 268 and 265 of the Penal Code. JUDGMENT NFALILA, J. Over a period of four months i.e., May to August 1975 a large number of cattle 76 in all belonging to the complainant one PHARES NYAKUTONYA were stolen apparently by different people. The fact that 76 out of the complainant's 404 heads of cattle were missing was not discovered until August 28th when a report was made at the Police Station and a search mounted. In the course of this search 10 heads of cattle were recovered from different people including one MARANDI B-JANA (P..5) from whom one cow was recovered. It was ideriti- fled by the search party by its mark or brand "PFN on the thigh. cmen questioned Mararidi explained that he bought the cow from the appel- lant on 19/8/75. The appellant denied this allegation. She was never- theless charged jointly with three others and on the evidence of this alleged buyer P.W.5 and Mgasa (P.14.9) the appellant was found guilty and convicted. Each of them was sentenced to six years imprisonment0 The present appellant appealed against both conviction and sentence. The case against the appellant hinged wholly on the evidence of the buyer. But apart from the fact that the evidence in support of the transaction is somewhat woolly, the identification of the cow was not very well done. As to the sale, it boiled down to the word of the buyer against that of the appellant and I thought that the buyer should have produced more evidence to establish his claims, for the evidence of his witness was counterbalanced by that of the appellant's witness. The case against the appellant being so uncertain, the learned State Attorney did not support the conviction and for the foregoing reasons, I agree with her assessment. Accordingly this appeal succeeds. It is allowed, the conviction quashed the sentence set aside with an order for the appellant's imme- diate release from prison unless she is otherwise lawfully detained. •0 Delivered in Court at Mwanza this 27th day of November, 1978. MWAN ZA. 27TH NOVE MBERL 1978. JUDGE