19850509 TZCA Dar es Salaam

...... r , . 1 •• ' t·· · • 'r·,.,.,.: -~ .,,.."..i:···•·..::, ~ Hf THL COURT OF .Ar-PEAL OF I'A:NZANIA AT M~iANZA ( CORAM: MUSTAFA, J. A• .i MAKMT11. J. A. and KISLI-:GA, J. A. ) CRIMINAL APPEAL NO. 12 OF 1985 BE.TWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS •••• APF~LLANT versus SIMON s/ 0 MAGAMBO •••••••••• ,•••••••••••• RE.SP ONDE.NT (Apveal from the Decision of the High Court of Tanzania at Mwanza) (F. A. r-m.:mn,RJ., J.) dated the 28th day of March,, 1984 in Criminal Appeal Case No.171 of 1983 JUDGMENT OF THE COUR'I1 MUSTAFA, J. A. : The respondent was charged with and convicted of cattle theft and sentenced to 5 years imprisonment in the District Court of Musoma. The trial magistrate made the usual order of -0ompensation for cattle not recovered. The respondent apt:'ealed to the High Court (Munyera J) who allowed his anneal, and qu1shed his conviction and set aside the sentence imposed on him. The Republic is appealing against the acquit- tal to this Court. P~~l, the complainant and owner of 16 head of cattle, found that the door to his cattle pen was open and his 16 head of cattle lost. He followed the cattle trail and eventually found 2 of his lost animals in a herd of cattle. These 2 animals were properly identified by p.~l, and the respondent alleged that he had purchased them at a cattle auction on 6.10.'82. p. W. 1 discovered the theft of his cattle on 5.10. 82. The respondent produced a receipt from the alleged cattle auction. It was a receipt from Tanzania Li:v.e-Stock Marketing Co. Ltd., bearing serial number 1014862 dated 6.10. 82. The year appear ✓ have been crossed and was unclear. ··•00./2. ... ' . '~ ,,,,,,_ 2 It mentione%h~ heaJ of cattle for a sum of Shs• 3,000/=· ilpparentlyLtax paid was 8/c• 'rhe Police ll,anaged, with the help of an official of the Tanzania Livestock i\'.arketing Co. Ltd. lJ.,,;.5, to trace the relevant receipt book and discovered the duplicate copy of d.eceipt No. 1014862. The duplicata showed the J.ate to have been 6.10.81, in respect of the sale of one goat, to one iV,agafu, not the respondent. Clearly the receipt produced by the responu.ent was a forgery, anc1 Weis so found by the trial court. The respondent, in the trial court, gave eviuence. He sc1.id that he had purchased at the cattle 6 U.C tion at Songora, and when cross-examined he said he purchased the animals at an auction at l.Vlugango, and then changed again and said it was at Saragana. There was also evidence that he told P.r/.1 that it was at Saragana, and told P,.J.3 that it w3.s at Busegwe snd told P.w.4 that it was at Saragana. On first appeal, the Judge referred to the evidence of D.i,J.2 Sia Matutu, who testified that he was present at the Saragana auction on 6.10.82 when the respondent bought the two animals. The Judge stated the trial Magistrate had failed to refer to D. 1/. 2' s evidence and that was one reason for overturning th .. conviction. J; s we have pointed out, the respondent had stated he had purchased the animals at 4 different auctions, and the evidence of D. ,,J.2 in the circu1nstances could not have any ,naterial significance. The Judge also found that the respondent had stated that he had bought the cattle at Songora auction and not at Sarangana auction, and that there was no evidence to refute his allegation. Jis we have pointed out earlier, the respondent had said he mau.e the puru.hase at four J.ifferent auctions, not only at Songora as the Jud.ge had found,. On a review of the evidence we are satisfied that the conviction of the respondent by the trial Magistrate was justified. ,1/e allow the appeal of the Republic, set aside the acquittal of the respondent ordered by the Rich Court, and restore the conviction of the respondent entere:.1. by the trial Magistrate as ,well as the sentence of imprisonment of 5 years imposed on the responu.ent, as well as the order of compensation made. / - 3 - DATED at M:lANZA this 9th day of May, 1985. A. MUSTAF'A JUSTICE OF APPEAL L. M. MJ1K AME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that . ' '