19801010 TZHC Mwanza

id /C Sm IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 0 158 OF 1980 ORIGINAL CRIMINAL CASE NO 0 211 OF 1979 OF THE DISTRICT COURT OF MUSOMA DISTRICT AT MUSOMA BEFORE: RWELENGERA, Esq., RESIDENT MAGISTRATE KISUNDi ISOMBA .................................... A-'PELLANT versus THE REPUBLIC ........................ 0.0 0 0 0 0 0 0 0 ..... RESPONDETT JUDGMENT MUNYERA, J., - The appellant was convicted of being in posses 5Yo of suspected stock and sentenced to five years imorisonmnt. The story was that on 11/8/79 one bull belonging to the complaineot got missing from his herd during grazing0 He started to look for it0 On 14/8/79 he got information .that the bull was slaughtered in • certain village0 He reported the matter to the villago authority. A search was conducted 0 Meat and pieces of unskinned legs rd head were found in the house of various 1)eOple including the appellant 0 In the end four people including the appellant ur chargod with two alternative counts 0 Two of them (accused No. 3) were acquitted. The appellant (1st accused= and the 4th accusoJ were convicted of the second count, that is: being in possession / of suspected stock c/s 3 (1) Cnp. 422. The appellant was 4 sentenced to, five years and the 4th accused, a boy of about 14 ' was sentenced to suffer 10 strokes of corporal punishment. The appellant brought this appeal. In his memorandum of appeal tho ' appellant repeated what he stated in the trial that the the pieces of legs found in his house were brought there lawfully. ' That the appellant attended the funeral at Kiahakari and a cow was slaughtered and he got his share. It was undesputed that meat and 'pieces of unskinned legs were found in the appellant's house. The legs were identifiod by the complainant. I agree with the learned state Attorney the circumstances under which the meat and hones were found, olus th behaviour of the appellant's mother who volunteerod to n ame a other people who jointly slaughtered the hull strengthened the magistrate's finding that those remains were of the complainant's bull. The only question is" whether the arpellent and the fourth accused were rightly conyicted of the 2nd count of being in possession of suspected stock when theywere found in possession of moat and hones. S.2 Of stock Theft Ordinance Cap. 422 gives interpretation of stock as follows:- "stock means any of the animals mentioned in s, 268 of the Penal Code and any young thereof." In this case the appellant was found in possession of remains of a carcase. The learned state Attorney argued that this could rot 3 called stock. I am of the same view 0 ilm -2- It would have been better to say the appellant stole the bUll and slaughtered it rather than say he was found in possessiö:i of the bull.. This envisage a live animal0 The appellant had slaughtered the hull and found with its remains 3 days after it was stolen. The doctrine of recent possession aplied. H should have been convicted of cattle theft c/s 265 and 268 as avcrr:ci in the 1st count. I set aside the conviction under s. 3(1) C:v:. 122 recorded against the appellant and the Ath accused and sibsi5:1.1tu thereof the conviction under s. 265 and 268 of the Penal Codu. The sentence of five years meted on the appellant and that of 10 strokes imposed on the 4th accused are undisturbed. 0 With this adjustment, the appeal is dismissed. F. A. IUNYERA JUDGE MWJi ' ell ( —I