19790530 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MIIIBYA APPELLATE JURI SDICTI ON HIGH COURT CRIMINAL APPEAL NO. 58 OF 1978 C/F CRIMINAL APPEAL NO. 59 OF 1978 (ORIGINAL CRIMINAL CASE NO. 394 OP 1978 OF THE DISTRICT COURT OF IVmEYA DISTHICT AT 10EYA) BEFORE: L .R MANEITTO ESQ, }ESIDENT MIIGISTRATE LAISON HOLEN ... O ,..,....... APPELLANTS PATRICK SHABAN .,...°," (Original Accused) Versus: THE R3IPUBLIC . . . . . 0 • . RESPONDENT Original Prosecutor) CHARGE: Cattle Stealing c/s 268 and 265 of the Penal Code Cap. 16 JUDGMENT SANATTA, J., - Thesetwo appeals, which are conjoined, are from a decision of the district court of Mbeya district whereby the appellants were convicted of cattle theft, contrary to s. 265 and 268 of the Penal Code, and each sentenced to a term of five years' imprisonment. It was not in dispute at the trial that on September 26 1977, ten head of cattle belonging to the father of one Holo Ntigwa were stolen. It was the case for the prosecution that the theft had been perpetrated by the two appellants. They sought to proire that assertion by adducing evidence to the following effect. On the material day Holo Ntigwa was in the bush, tending her father's head of cattle, which were as many as two hundred. There she saw the second appellant, Patrick s/o Shabani, who was also herding head of cattle. As the two were engaged in that familiar activity the head of cattle from the two groups got mixed together. Later the second appellant was seen by Holo driving away what at that moment she took to be his cattle. Soon thereafter Holo discovered that some of her head of cattle were missing. On returning home she reported the loss to her father. ../2 p 9, Her brother 9 one Bundi, counted the head of cattle and discovered that those missing were ten in number. He went to the home of the second appellant. The second appellant admitted to him to have met Holo at the g2'azing area but denied any knowledge about the missing beasts. On the following morning, in the company of a leader of ten cells, Bundi went to the home of the second appellant. There the two men saw three men - including the appellants - standing quite.close to a cowshed. The krawas situated between the house of the first appellant and that of the second appellant. On seeing the leader of ten cells and Bundi, the third man vanished from the scene like a flash of lightning. In the cowshed Bundi indentified four of his father's stolen head of cattle. The leader of ten cells arrested the first appellant. The second appellant resisted arrest, indicating that he would be prepared to surrender his personal liberty only to the hounds of justice. He was arrested by . hothd of justice two days later. The defence of the first appellant, who denied to own any head of cattle, was that he was arrested by the leader of ten cells at his home. He appeared to suggest that he knew nothing about the cattle theft. The second appellant denied, in effect, to have met Holo on September 26, 1977. According to him, the story that he was seen near the kraal by the leader of ten cells and Bundi was a piece of imagination. The le-ined trial magistrate reviewed the evidence before him at a fairly great length. The upshot of the excersise was that he found Holo, Bundi and the leader of ten cells truthful witnesses. The appellants' defences weighed nothing On his mind 6 In the end he convicted both appellants of cattle theft. Mr. Mtaki, counsel for the respondent, declined to support the convictions. If I understood him aright, as I believe I did, he found himself unable to support the learned trial magistrate's decision on the following ounds: (1) That it was not established at the trial as to who was the owner of the cowshed in which the four alleged stolen head of cattle were found; .113 • ,•- r / . J- 3.- That there was no evidence establishing that the appellants were in control of the four head of cattle; That the identification of the four head of cattle was unsatisfactory; and That there was no evidence as to how many head of cattle were found in the kraal. While paying tribute to the learned state attorney for his recoütion that it is not his function to press for a dismissal of an appeal irrespective of the quantity and quality of the testimony laid in the scale against an appellant, I find myself unable, as far as the second appe1lants conviction is concerned9 to agree with his submission. In my view the evidence of Holo, which the learned trial magistrate accepted, left no reasonable doubt as to the fact that the theft of the ten bead of cattle were stolen by the second appellant. The theft took place at the grazing area or later in the day after the appellant had realised that he had mistakenly drove to his home head of cattle which belongea to somebody else. It is true that the complainant identified the four head of cattle by their skin colours only, but there was no dis1ute in this case as to the ownership of the four animals. The silence of the testimony on record as to how many head of cattle were found in the kraal does not, in my judent, reduce the weight of the prosecution case even by an ounce. \Jhat was material here was the fact that four of the stolen head of cattle were found in a kraãl which was situated quite close to the appellant's home and near which the appellant was seen standing a day after the same had been stolen. Bearing in mind of Holo's evidence, I think the conclusion that the second 'appellant was in possession of the four head of cattle found in the cowshed is inelucatbie. If that view be right, it must be beyond argument that the learned trial magistrate was perfectly entitled - indeed he was bound - to convict the second appellant of cattle theft. I would, for these reasons, dismiss the second appellant's appeal against conviction. His appeal against sentence lacks even a shadow of merit. . . . /4 1 -5 - __ _i_-- B.L.. SAIkTTA JITJDGE Orc1er The appeal of the first appellant, Laison s/o Holeni, is allowed. The conviction is quashed and the sentence imposed thereon is set aside. Unless his personal liberty is being assailed in connection with any other lawful matter the first appellant be realeaseci from custody forthwith. The appel of the second appellant, Patrick No Shabani is dismissed in its entirty, -- ii -- -- B • A • Sid•{ATTA JU])GB Delivered in Court this 30th day of May, 1979, in the presence of Mr. Mwanyika, counsel for the respondent. - B i1 SJdIdTTh JIJDGE.