19790110 TZHC Mbeya2

Wc, A 5da-a-,", 1P IN THE HIGH COU1T OF TJiNZANIA AT MJ13,13YA APPJJLATE JUflISDICTION CRINAL kPPEIL NO. 122 OF 197 8 (Original Criminal Case No. 97 of 197 8 Of the District Court of Mboya District at Nljoya BIifl?ORE: P. II. BITEYUI'IGA, ESQ., H/MAGISTRATE). AirYELWISYE MtIANDEIY1ELILE ........... ............ APPELLANT 1flflSUS THEREPW3LIC •........... •. ..., •.... ..........• RESPONDENT CHARGE: Cattle theft c/s 260 of the Pna1 Code, Cap. 16 Vol. I of the Laws SANATTA, J., - Esulusi Nangu is a young boy. He is about nine yea±s old. One morning in January 1978 he was in the bush herding his andfather's cattle. He was used to the task. While he was engaged in that activity, a gang of four lien appeared on the scone. One of the :ien :oounced upon him. He pressed him on the neck. While the non was behaving so cruelly his colleagues drove away the cattle. Lateri the ra mining gai,tor pushed the young boy into a thidk bushi He kept him there as a captive for about eight hours, before releasiTg him. As daihenc;ss had already set in, the boy had to spend the night in the bush. It must have been a horrifying experience for a boy of his ago. He survived the night, and in the morning he returned to his home. He told his andfather, one Saad Pundi, of the suffering he had been subjected to. In all, one hundred and forty—eight head of cattle had been stolen. By any staniard that was a painful loss. Saad Thndi decided to visit all the ouwohocis in the locality, hoping that he would trace his stolen animals. It was not an unwise decision. On the following day, he saw one of his stolen head of cattle in the appellant's cowed. The appellant offered an explanation for his possession of the animal. He asserted that he had bought the animal from one 3hija. Shija was a roEident of the appellant's village. The appellant clung to that explanation when he was taken before a ward secretary. The latter sunnoned Shija. When confronted with the appellant's assertion, Shija acinitted in unequivocal terms to have sold the animal to the I' appellant. / .j2 -2- Th e adnission was later reduced into wri±in. Both Shija and the appellant appended their signatures to the clocunont. But on the following day Shija disappeared fran the village like a flash of lightning. The aninal which Shija had aciroitted to have sold to the appellant was left in the custody of the appellant until further order, if any, was nade by the authorities. On February 21, 1978 , a police officer visited the appellant. He went to seize the' aninal the appellant had allegedly hought fran Shija. The aninal was nowhere to be seen. The appellant denied to have been allowed to koup the aninal. Ile told the police officer that the aniioal had been taken away by the local authorities. The police officer did net believe the appellant. He arrested kin and, later, char ad him before the district court of Mbeya district with the theft of 14 8 head of cattle holonng to Sand indi. At the trial the appellant maintained his story that he had bought the animal he had been found in possession of from Shija. Contrary to the prosecution story, the appellant denied that the village authorities had left the ofliiial in his custody. He repented the story he had made to the police officer that the authorities had taken away the animal. At the end of the trial the chopper fell on him: the learned trial mastrato found him guilty as charged and eoni;unccd him t. a tern offive years' inprisonLlent. Until the tine when the appellant was being escorted to the prison Shija had not been traced. In his •judoont the learned trial i.iagistrato disbelieved the appellant in his assertion that -the animal had been taken away by the village authorities. But what happened to the animal? The learned listratu said "How did hu aniii42 get tIlOS?t? Hiraculously? ITiraclos are very rare these days. Of course the fact that there are no cattle thefts at the villa: e of i'Latwiga as allegod by the prosecution is of no consequence-s. This disease which is rampant in most parts of this Jiogion can break in there at anytime, It is a question of tine. But I do net believe that the subject cattle was stolen by some unknown people. If at all why doesn't the accused say the bruth? Why doe's he not keep to one story (a story with which I have no doubt) which he had told the prosecution witnesses before this i.inttor was referred to this court? I can think of no o -bhor erelanation. The accused iust have "lost" the ca -ttle through the means known to himself. end if he had bought the same from Shija he could not have employed these moans in order to defeat the administration of justice. To this end I have no doutrt that the subject cattle belonged to the complainant (Pw. 6) and the accused,, because of his unbecoming conduct soon after the matter was handled to the instruroents ofjusticu he must have been a party to the subject offence" With unfeigned respect to the lenrmd trial magistrate-, I own 0 0 0 '- - - ------4 titoj J4aOqT 00 oq o 0Lfl 'ZtOq4UrI IflJWCI .IOqqO .&UU LflTM U0t0)Utt00 Ut p [TUSSU ?UT0cL ST ,4-IOUT IUtT0S.IX St S)TUJ1 PTS S pTI4S P00II 9 '-L qouui3o uoqUsuocTnoo .xoj iop.xo oqj tottq posothrç 0ou(4u'S T4 OpçsU S 1)UU Uoq.oAuoo 0t. qSUflb I 4iTU0flb0SU0O ¶&qioq IUUoSJ.cI UU uo 4ncIo.1 sq jo poqqo.i iCI ç.x qou SUi uofl0 sfl. -n- qoçurnjru IJJ t4TM °' 'U0A? flAtt I SttC'SUO.1 0 JO%ff 05U0 ST- UT T9ttt r:TIi pnU.1U'T )Lfl icq PTTd(iU uoq DAUt[ '[UTt1t 'prLeis posnoot oqq. Jo .IflCAUJ UT 0ATOS0.I rq sn:r qnop OSUO u0TnOS0.I[ otq UT qqnop s 041k :1fl eICITOUT.1d U2T0.10AOS ttL1 pU45 04 UOTSTO-3p stnoo .1tMOT oqq MI C.. 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J[UO SIUOITUU U 0 1 0 S 84g. 30 OUO JO uoTSSossod UT PU1CJ SUM q.titecTdU 014 .U14 OUJ eqq. uo postq 6q.T pU4S0Irt I St SUM UOTq120IU (tt3 '4SUQ 814 UT Y[4U0 JO P-O'ni 971 014 UOIC4S pUtt 04M S.1(4SS)UUI7 .11103 014 Jo CUO SUM q.tmjjodft 014 Ut4 SUM uoq.nooso.icl 014 .103 05120 0t S)uruostoJ STt[ MOTIOJ o. CIU04U t'i U [flOTJJTP q.teS) POOUOT.1OdXO 0AU4 I 1-''tt1- - c - 4 -4-- Delivered in Court this 10th day of January, 1979, in the presence of Mr. Thiomjoba, counsel for the appellant, and Mr. Nwanyika, counsel for the rospondont. B. A. S.MJkTTA JUDGE