19801014 TZHC Tanga

( A:. IN THE HIGH COURT OF TANZANIA AT TAIGJl APPELLATE JURISDICTION CRIMINIJ AppEM NO. 45 OP 1979 (original Oriminal Case no 76 of 1978 of (the District Court of Pangani at Pangani) - Before: J. Mushumbusi, Esq 1 , DM • JOHNSHIJA...O..O. O....APPELLANT (Original Accused) • Versus TILE REPUBLIC. RESPOIWT (Original prosecutor) CHARGE: Cattle theft c/s 268 and 265 of the Penal Code Cap. 16 Vol. 1 of the laws. JUDGEMENT Sisya, J The appellant was convicted of cattle theft and he was sentenced to the statutory minimum of five years imprisonment He is now appea1ing The evidence upon which the learned trial Magistrate based the conviction-IS that on the materialnight when the conp1ainants goat disappeared the appellant did not Spend the night at the, complainant's home where he was residing On the following morning the appellant wasound with a plastic container which contained some meat which the complainant claimed was from one of the front legs of his rnissingoat. It is not clear how the complainant could be so positive about thiS ./2 1 In his sworn stutenierit in his defence the appellant denied that he Stole the complainant's goat 8. He added that he did not spend the night at the eomplainants house because he was too d'unk to return hone Instead he spent the night at the hoiie of one Mohamed Mzee This piece of evidence was not contradicted by the PThs e cutio$ In convicting the.appellantas charged the learned trial Magistrate had, among other things, this to say and I quote: "I find it as a fact that accused was found with a part of the stolen goat and as. he had merely. denied that without giving any explanation as he came by the same (sic) and the fact that accused did not sleep at the complainant's home on the night when the goat got stolen and yet it was where he resided, he must have been the one who stole the goat" On the evidence on record it is not clear how it can be said with moral certaiflty and to the exclusion of every peradenture of doubt that the piece of meat under querry was p.rt of that of the stolen goat Again, if So then it is not known what appellant did with the rest of the mat particularly when his place of residence was the complainantts. If he sold the same then the Prosecution • own evidence shows that the appellant had only, She. 4/= on him • at the time of his arrest, As for the reason why the appellant failed to turn up home the one advanced by him at the trial was p as aforesaid not contradicted and the learned trial Magistrate advanced no reason at all for rejecting it On my evaluation of the evidence I f±n. the Prosecution C evidence fell short of the standard required to sustain a conviction on a criminal charger The conviction, which was not supported by the Republic any way, cannot therefore stana e, In the final result this appe.i is allowe4. The conviction is quashed and the sentence passed thereon is set aside The appellant should be set at liberty forthwith unless, of course, he is being held ) / WA —3—. on Some other law±1 u1 charge or charges Delivered in open Court at Tanga this 14th day of October 1980. (H.D.(isya) Judge. Advocates: Mwa].e Esq St&te Attorney, for Republic.