19870923 TZHC Dar es Salaam

THE UNITED REPUBLIC OF TANZANIA IN.THE HIGH COURT OF TANZANIA AT, DAR ES SALAAM APPELLATE JURISDICTION man COURT CRIMINAL APPEAL NO. 86/87 ORIGINAL CRIMUTAL CASE NO,. 69 OF 1984 OF TilE DISTRICT COURT OF MOROGORO DISTRICT AT MOROGORO TITO MAZEtiGO BOZI ;, • , • • • . . " (Original ~• • APPELLl\.NT Accused) v.ersus TilE IB'JITED REPUBLIC • • • • • • • • • • • RESPONDENT (o.r-iginal Prosecutor) Charge: Cattle theft o/s., 268 (1)(2) & (3) of ·the Penal Code: J U D G E M E N Tg MA.INA, J. The appellant, Tito Mazengo Bozi, was convicted of cattle theft and he was sentenced to five years imprisonment• Ile now appeals, It was established in evidence by the prosecution, and not disputed, that the appellant was a ·security guard who was employod by Morogoro Development Corporation (MODECO) to guard the cattle stied where the Corporations cattle were .been kept,.. There was evidence that the appellant had been entrustea.·with forty...eight head of cattle which were then locked in the shed. On the morning of 31 January 1984 1the appella11t gave to the herdsmen J;'l'T.2 Paskali Kalisti and PH.4 Mwaluko Maire twenty-oight head of cattle•. 'rhere were no more cattle remaining in the cattle shed. So the two herdsmen sent the twenty eight of cattle for grazing. The appellant failed to account for the twenty head o:f cattle which were missing. llis evidence that the cattle were lost by the herdsmen vn1ile grazing was rejected by the trial court. ' The lea.med resident magiotrate saw and believed the prosecution witnesses who said that the appellant gave them twenty-eiglrt head of cattle for grazing and that ·they were, not forty.. eight as alleged by the appellant. These witnesses impressed the trial magistrate who believed them. I can see no reason to interfere with the findings of the trial court. The appellant's witness, Kumbusho . . Ramadl;,l\Jli said specifically that he did not . count the cattle and so he would not be able to know the actual number of cattle. ) - 2,.... which the appellan.t gave to the herdsmen for grazing •. The witness could not therefore advance the appellant's version that he gfJ,Ve forty~eight head of cattle to the herdsmen. The appellant complains that he was not allowed to call his witnesses, That is not true. The record shows that he was out on bail and he mentioned two witnesses, Kumbusho and Musa Athumani. He was given time to call them. Summonses were issued to his witnesses., Hearing was adjourned :for one month to enable the appellant bring ll.is witnesses, Another adjournment was granted on 16 October 1984 because the appellant said that his witnesses had gone to Mwanza, Again on 30 November 1984 the appellant could not produce his witnesses and he was granted a last adjournment. On 17 December 1984 he was able to produce only one witness Kumbusho Ramadhani 'who then testified.., In the circumstances, it cannot be said that the appellant was refused an opportunity to call defence· witnesses. Ire was himself to blame for failing to produce the ,~tness. On the evidence on. record, the prosecution proved that the appellant failed to account for twenty head of cattle which were entrtlstcd to him.· The irresistible conclusion is that the appellant stole those cattle. The conviction was_ inevitable and the sentence is the mininn.un under the law. Ih the resul't, this appeal is dismissed in its entirety. DAR ES SALA.AM W,. J. :MAD-TA 23 SEPTEMBER, 19o87 JUDGE l\v~i, State Attorney, for the Repu1: Lie Appellant absent. ·