19800919 TZHC Dar es Salaam

-- rk. i~ L760"- ~ ~ ( HIGH COURT OF TIMAN IIi AT DAR ES 8AWN APPELLATE JURI SD lOTION B'GH CURT CRIMINAL APPEAL NO. 34 OF 1979 . ORIGINAL OflIMINAL CPSE NO.. 20 OF 1977 OF ' ZBE DISTRI.T 'COURT OF MOROGORO DISTRICT AT NOR000RO Before: M. ::L. X . KAiOITYELE, DISTRIC:T Wi GISTRATE IMAT0NG.SiG1T.I.. ..,.......... II ....,......PAPPEILB. • . . .. . versu THE REPUBLIC .... ., •.•• • , • , . , • , , • • . • ....RES.PONDrT JUDU-EMENT N.IGANQ. J.. The appellant KIMTONGE.: S/O...SI.:G..I TI. and .ohers wereQonv1cted by the district court of Noro,goro of stealing eleven heads of cattle contrary to sections 268 and 265 e±'- t.i- ena1. Code. ••.• Theappe1a.nt was. it•cd to imprisonment for five years•, under th,.proviS1ons of the Minimum Sentences Act, 1972. Diseatisfied, he has pe1 ed to this but it seems', to me'tIeL't:.'there 'is no' i1nce in the appeal.. The evidence .shis that the :cattle in .queat±on were part :of a herd ..Whih' PW3 Chota was graz1ig .j . pasture at Mkata on the5th January, 1977. They were the prop.r.ty of the NkataRanch, a National venture.:.PW3;tOId the court that as he was tending the ;herd four 'Nasal 'Norani came to him and accosted him. Then, shortly thereafter, they started drivirg som,f the. cattle.,. He was moment- ariIy.bewilder.ed. He tried to resist but he..was threatened. The bandits brandiehed their swords menacingly, saying that they would spill ,hip bio'od if lie. .;.dared .foJ..l.w them. . 'I S S S S t -2- He was frightened and he let them drive away the cattle. He immediately went to report -to the Nanagemit of.. the Ranch who . alerted the police. He said that the appllnt was one of the four rustlers, and that he was wearing a cloth wrapper ound his head The evidence also sh6s that a few dárs i.áer a combined team of police and the Ranch off ioials went'' to Kingoiwira where they met with and apprehended th.e appe- lant. They were led to that plabe...' -by an inforrner, .Oi interrogation, the appellant dislo,sed that he iiew ihOre' some of the stole±i cattle were 'beir iidden 4 He told the searching party that he had been employed. to' look ..afte m and that he was grazing them at hi,ght time. He led the party to 'a bush up in the hills, Where they' found some of the stolen cattIe.. They were conf±ned ma newly built boma. They'w.ere sei.zed and the appellant was brongh± to court 0± the 'charge.,. ,.. .... . In his defene he denied that he was a tarty to the stealing of the cattle. He also denied, implicitiy, that he had led' the searching party to the hills at Kingolwira and shown them some of the stolen cattle. The trial tgistrate was satisfied 'that the 'appellant had taken part in the commission of the offence. He found that PW.3's identification was reliable. He believed the testimony of the other prosecution wit- ziess to the effect that' the 'appellant had 1ed them to a hide-out at Kiriolwira where they discovered some of the 'stolen animals. . In'challenging that, decision, the appellant has, in his petition of appeal, repeated his denials which a..., he made at his trial. The Republic is suppol&tmg the conviction, saying that the leathed magistrate was just-ified.to believe and to act upon the prosecution evidence. I enti.rëy agree with the Republic. I think that the learned ngistrate was right to accord credence to the testimony of P W.3, I entirely agree that the conditions for a correct identification were quite ideal and that P.W.3 did not mistake the appeflant for another person. The theft took place in the clear, light of day and P W 3 actually saw and talked with the four foraying young men. The learned magistrate was also entitled to accept thc evidence of the other prosecution witnesses regarding the discovery of some of the stoloi cattle at Kingolwira. No doubt that that evidence established that the appellant was an accomplice in the crime. - The appellant has complained that he was denied an opportunity to call his witnesses. That cannot be entertained, in view of the notes of the proceedlnLS. The recordshows that he declared to the court, twice, that he had no witness to call on his behalf.- .- As the sentence was the minimum prescribed by law this appeal is wholly dismissed. Pronounced 4n- Court. Mr. Uronu for the Republic..' Appellant absent. (D. P. NZEcLN0) DAR. ES SALAAVI 19/9/80 ' JUDGE - --: '