19800624 TZHC Tanga

2 IN THE HIGH COURT OF TANZ&NIA ATTANGA APPELLATE JURIDICTION (Original Criminal Case No.87 of 1979 of tho) (District Court of Muheza District at Muheza ) Before: W.S. Mkulurigu, Esq., DM REGINALD BE13EDICT ....,.,............APPELLAMT (orig. Accused.) vorstii THI?REPUBLIC...........6..0.......RESPONDENT (orig. Prosecutor) Charge: Cattle stealing 0/8 268 and 265 of the Penal Code Cap.16 Vol.1 of the laws. UDGEME.NT Sisya, 3: The appellant was convicted of cattle theft and he was senti-icod to the statutory minimum of five years irnprisonment He is now appealing. On the afternoon of 17th May, 1979 the complainant, Twalaka Chacha (PW4) received information that his ram had disappeared from the bushes whore it, together with other animals belonging to him, had been taken fo±' grazing. Thereafter, he mounted a search in and around the said, bushes. Eventually he found it, but dead... It had been slaughtered. On seeing this he went and reported the matter to his neighbours, namely Daudi Anderson (PW2) and Hassani Kamili (Pw3). Eventually, they prooed.ed to the scene to waylay whoever would turn up f or the kill. The strategy bore fruit for sometime botweon 9,00 a.rn. and 10.00 p.m, a person who turned out to be the appellant turned up and collected the carcass. The complainant, PW2 and PW3 testified to the effect that when surprised the appellant dropped the dead, sheep and took to .. ./2 his heels They gave. chase right up to the appellant's house where the 1.tter quickly opened the door and locked himself inside, This effort to freedom was, however, shortlived because with the assistance of local militiamen the appellant was subsequently apprehended and brought to justice. In his sworn statement in his defence the appellant stated that from 2.00 p.m. to 6,00 p.m# on the material day he was in his shamb. Thereafter be returned to his house. Later at about 1.00 a.m, nilitiame1i went to him and told him that he was being suspected to have Stoln a' sheep Despite poteSt5 he was arrested and taken to the Police Station The appellant called twoWithe8ses on his own behalf at the tria1, DW2 1 Nyota Mbr1amwezi, who described himself is neighbour , of the appellant stated that pt. the thaterial day he saw the.. appellant at his house at about 2.00 p.m. Thereafter h?,DW2, iëft and proceeded to his shamba: ti denied seeing the appellant in the latter's shamba and he added that, in fact s he dad not even know where the appellant's shamba is, Later in the evening he saw many people who gathered at the appellant's house. He also over heard them say that apel1ant had stolen their sheep. DW3, Junia Selemani, Who also described himself as a neighbour of the appellant testified that on the niateri.l day during the day time while he was grazig his cattle he came across uid saw the appellant slëèping in the bush. There was a fire near-by but it is not clear whether the said fire was burning or rnerely sm ri DW4 however, went on to state that at a distcrnce from where the appellant was sluhering he '6nd' the appeilant' oher who did not give evidence at the trial When he DW3, '- .slced her the notber of the appellant replied that he appellant, was sleepulg there because he was tired -: . .- 3- In his judgement the learned trial Magistrate rejected the deence story' Instead he fond that appellant was the person who stole and slaughte'ed the complainant's sheep In arguing out this appeal 'before the learned Counsei for the apellart, Mr Mramba submitted that all Prosecutionwitnesses i.e. PW2, PW3 and PW4i talked of ambushing the appellant in the night and in the bush. Since none of them said Iow close they were to the appellant at the material time and how high the grass then was at and around the scene it was very unsafe for the learned trial Magistrate to have found the identification of the appellant sufficiently established: .; .. With respect,. I see no substance in this submjssion Admittedly all the three material witness for the prosecution said that they saw the appellant in the tuSh and in the night' However, pW3 had the following to say on this aspect of the case and I ']uota from the record of procoedng in the Court below: "We waited there till 900 p.m. in the night when we 5w the accused person collecting the slaughtered sheep from the bush where it was hidden 'I hd a to±ch vith rne I flashed t it rn'd.saw the aãcused person clearly. On'seeihg us the accused ran away. He had a knife with him.' We chased.him He ran to his home where we arrested him." The position would perhaps have been different had the.appellant ran to some other place first and his pursuers lost sight of him. Howeverp this is not what happened. From the evidence of pW2, pW3 and pW4 it is.as clear as day light that after flashing him with a torch the appellant ran to his house with the thxee witnesses hot at his heels and they caught up with him at his, i.e. appellant's house. On my evaluation of the evidence I do not hesitate to find the identification of the appellant as the person who was seen take the carcass of the dead sheep on that material evening fully and sufuicien-tly. e.stablished In his address to the Court at the hearing of . the appeal 1' 4•- ——: Mr. Mramba for the ap'pel.iant went onto' 'submit that even if the S.,. appellants identification on the material evening was found to have been fully established theii the most that can be said, on the evidenceon record, is that he appellant, merely attempted to steal the' carcass of the sheep becue: there was no. evidence.to show that the appellant was seen take away the sheep presumably before it died • Inth.obsenceof any. direct ejdence on this point or any other conc1u'1ye evidence of theft of the sheep, argued Mr. Mramba, it is quite possible thit t1 appellant saw the carcass during the day and de.cided tosi,c it during the .giit . With the greatest respect to the learned Counsel the duty of Court of justice worth it§j ti - le and name is to decide the case on - the evidence adduced in the case' It is not only highly undersirable but also improper to import thi r hich Were never said in evidence or dwell on speculation. In the pnstant matter no where on the record of proceedings of the loer w Court was it suggested let alone stated that the 'app,ellant only saw the sheep when it was already de.d and theéfoe,he,eaided to steal the carcass The appellant himself did not. .o, in his defence which, as will have been noted by now, was a comple'te denial to have had any dealings with the complainant's sheep, dead or alive. Therefore, accepting Mr. Mramba'S propoSitions whch, of course I do not e will be acting on mere conjecture: r I If I il Mr Mramba 1 S proposition were found to hold water. w14cI mus.t add, it does not then on the evidence on recordi the offence . oX simple theft would have been complete as distinct from a mere attempt although the obect would have been only the carcsS'. This is So because according to the evidence of pV2 2 pW3 and PW4 the appellant had already carried both 'where it was hidden when he was subsequently frorce to drop it and abandon it because he was surprised by the .../ A - ...d witnesses 1 If need be, when testifying on thin -9pott or the c't.Se pW2 Sajd.and I quote:- - "We saw someone approaching the e.hp Hemoe4 it:.from the bash :rd' 'we confronted hin"Dia sèeing ust1e acciised dTopped the sheep and Lied." yrIl- It has been held in a case where the accued person had issu1ted a woman and tore from her ear an earring Which Was subsequeuitly found . - in her haix that there was sufLicent proof of asportation to Support a charge of robbery SE Archboid1 35th Edn para 1512. Phére was 9 therefore, sufficient asportation to constitute theonce of stealing and not a mere attempt as suggested by Mr. Mramba for the appe11ant - . ..(, ,...,. . . Coming back to the inst'irrt appeal, the evidence implicating ..., ,./.- •j., n:oca:. the appellant was indeed, as póinted outbythe leaned state attorney, circmstania1 The.evidece shows that the sheep disappei.red in the bash in the afternoon. It Was 1 l'ter that same çfternoon, found slaughtered and hidden in the bush. Unfortunately - it is not clear from the evidence how far that was from where it was,originally grazing. I, however, entertain no doubt whatsoever. H .: • ci. . [ in my mind that it must be w),thin the bushes where the appellant and the three Prosecution Witnesses, i.e. PW2, pW3 and pW4 live Later, in the night the appellant goes directly to where the carcass • •Z..)' ...... .. • was hidden and picks it up.' It is not known whether or not the appellant too had a toThh,:iThe fact of the mtter is that appellant found his bearings right up to where the c-rcisS was At the trial ........................................... as well as before me 1 on first appeal, no plausible explanation is given as to how he found his way to the slaughtered sheep and why he took the same All these facts in their totlity irresistibly point to the fact that 1 indeed 1 the appellint must have stolen the sheep, slaughtered it and hid it in the bush • At the time he was surprised and subsequently appreh ded he must have gone to collect his coat MIM under the cover of darkness Holding otherwise would in all the circumstances of the case s be acting against the weight of the evidence and flying in the face of logic: The defence of the appellant hardly raises any doubts in my mind. Turning to seitence, the one imposed by the lowerCourt is the minimum under the law In the final result, despite Mr. Mramba's creativeness and gallant 'efforts to serve his client I am satisfied that the conviction of the appellant by the Court below was justified I find no merit in the cppeal which is hereby dismissed in its entire ty Delivered in open Court at Tanga this 24th day of June 1980.. H.E.D. Sisya. Judge