19820216 TZHC Tabora

7 • IN THE HIGH COURT OF TANZANIA AT TABORA. .• •., = APPELLATE JUR ISDICTION .•• ••= •(Tabora Reistry) (Ho) CRTh1INAL APPEAL NO0 139. OF 197 ORIGINAL CRIMIJIAL JASE NO 143 OF 1978 0F THE DISTRICT COTTRT OP MASTWA DISTRICT • , AT IVI P.S1A BEYORE . IZi iSq. . i)istric i"iagLSGrate. BONIPACE MADLTNGO0oo ,o,000000000000000APPELANT .- . . (Original Accused) Versus ., . THE REPUBTIC0 0 , • • RESPONDENT . (Original Prosecutor) OHIPETAJO / The:appe1nwac}a'gedy7ithand convicted of the offence of cattle 268 and 265 of the Penal Code, and was sentnce.to th: ør,y minimum sentence of five years imprisonmér.. Hef49v cappea1s. was that .during the night of 30th JuJyi,.i9J3; some.18 aeads ,of cattle belonging, t the compi ent,J me; Mifuko .Jiala,.. were stOlen. The complaint, his s/n one Jdulu rifuko(P01701) and neighbours went about Qok:g for the,rnisig aamaIs ometime ..iJSeptember, ..197 .P.WO.I .sa*bñe. Of their missing aattle a aierd which was beiug drvento Dar—es- Salaam by one.1V/chahu]4(PoWo2) When P0L1 asked,P.W.2. abput:the coyy laich had a .o]ear dtifyjng;inarir,. .P.W,2 said that he.hr1 bought it fro m one :Kwanu.M&ona at a cattle auction An auction clerk supported P.W02'story, and from the a jirss given bythe said Kwandu Mahona, the appellant was 'rested and was later identified to be the p'2on.who.haa3old the cow to POW,2 at the cathUiaixction. " At the appell, & ; t~tb villaeillage Chairmancofiêd that he h a d iued idGtfication chit to th'e aplI who' said he going t& 1lhis cow. I. his dE?ence the â1ant;charged that the prosecu- tion' s stOryv. pue fbica'tiox nd'dded"th't'he 'wa • fioMasá ánc. went to Iw'o e&thn€nt by a n a. • The learned magitrate hd no difficulti In beIiIñ • thG pi cutic:is •sory nd .in..ejecting the.ap.peflant's / story aisi'g no doubt n ais' mind 'acbbd.n1 - - 2 4 • convicted the appellant as charged Waving perused and considered the evidence, I can see no reason to impugu'.the learned trial magistrate's findings • of fact and the conclusions he drew therefrom. The evidence of identification of the cow was impeccable and the. eidence of POWO2 connecting the appellant with the cominission-ofth'e offence was corroborated by that of the village chairman, I will add that thefact that the appellant used a different name in the transacons went to show a guilty mind on - his part. Sfnce the appellant Was fOund in possession of the sto.lén ow less than o months from the time it was stolen, the doQtrine of recent po.sssion was properly invoked As to the sentence, I respectfully agree that it erred on the side of lenierLoy, but I do no think that a case has been made out for interfering with tlie sentencing courtss discretion. The sentence, therefore, will remain - undisturbed. In fine, this appeal fails and is accordingly hereby dismissed in its entirety. CHIPETA, RLD. JIJDGE Tabora 16th February, 1982