19890728 TZHC Mbeya

IN TT HIGH COTJRT OF TANZANIA ;'T_MBEYA ECONOHIC_JURISDICTION ECONOMIC CRISCAS P10.3 OF 1987 'Ibea EC. CR. CASE i'T0.4 OF 1984) THE, RE:PTIJJ3LIC VERSUS - QINSOM\lIITYII. J UD GE ME NT H iKASUJ. ..........The accused person one JOHN s/o MWINLI, stands chargedwith the Economic offence ofatt1e theft contrary 'to paragraph 12(1) of the First 3ched1e and S. 59L2) both - :of'the EcOnomic and Organi•zed Crimes Control Act, 1984, it being alleged that on 2nd day of September 2.984, at apogoro ..vi.1age, within Hbeya Rural District Pbeya Region, he stole 23 heads of cattle valued shs.230,OOQ/= 12 goats, valued hs18009/- 2 shéep 9 va1uedshs.2OOO/, all value'd at • 'hs250,000/=, the property of SAORAS/C SEENGO, He 1eaded not uily to the. ckare. Thereupon, ihe prosecutio'h, led partly by Mrs. ?Takuru, larnad. State ttorney and artly by Mr. Naali, learied. Stte Attorney, called fivë witnsses in all, namely, the P.1.1, one RASHIDI 5/0 CHALAMILA, . peasant, resident of I1rolo10 viliage the ?.V,2, bne GODFREY MANGA, a peasant and militia tutor, resident of Nlo10 village; the P.V1.3, oie JEREMIAH MUNGOLAGE, the ville chairman for Nyololo vil]age; the F.Vi,4, one Ast Inspector GEORGE J. MWAKA- LUIUA, of C I , D • I beya, and the ? 5, one SONORA 3/Q SNGO. :. In his defence the accused nave his evidence on oath and had three witnesses to..càll j11:js defence 0 They àe on. KISENGA 8/0 MWAMANGA of Itwo1u 'village, Sad.ani Ward, within ITbeya Rural District, one FXAKIRIA, the village • . chairman for Ikweha vi1ae and oneAMIAN s/o DUGANGE, amilitia man of Ikweha vjj1ae.. Jowever , the three W ~ . = 2= defence witnesses did.not appear to testify before this court because the accused absconded before the same could be tracad and proured to aear before this court. Hence the decision of this court t: proceed to write and deliver judgementin the absence of the accused as provided for uiider . 37(4)of.the cononic and Organized Crimes Control Act 1984 as amended by Act No 0 12 of 1987, which empowers this court to proceed with the trial of a case where an accusad.. person absconds at whatever stage of the trial s From the evidence as adduced on both sides it is common ground that on 2nd day of 3eptember 1984 2 23 heads of cattle, 12 ,oats, and 2 shee belonging to the Oj,5 were stol'en from razing grounds by un1aiown armed persons from T:pogoro village. Thereafter a search fr such 'ost cattle we.niounted by the P. ?,5 assisted by his fellow vi1lager. That took them to bothPäduma, I'Tyoiolo and Ik'veha vi1la.ces, At Ikweha ti:loy mmnaged to find and recover ftve heads of cattle which were found tied up in a deep va1ley. It is also undisputed that on 3/9/84, the accused was arrestd at Tyo1o1ovi1la:s by both the P.J,l, P,W.2 ard th 213 uaon being suspected a cattle rustler. He was then subsequently token to i'Iafinga Police Station, thence to Hbaa Police 3tat ion where he got charged with te offence in question. It is also common grQu.nd that a • dy later after the. arrest of.tha accused the P.3.5, appea- red at rJyololo village iiisear.chof his lost cattle and there was handed back two heads of cattle; one bull black ; in colour and .a cow greyish in colour, whi.ch' the p,J • 5 cIaimë. to have identIfied by hi mark imprinted on the rihthind1 of each of his heads of .cattJ.e On.the other hand, i'was the testimony of both the P 1 t7.l, PV2, and P. I3, that when arrested tao accused had two buJ.s one of which was black and the our white I n colour, and tht those were the heads of nbtie which were later hiaded to the P. O 5 aftr he hd identified each of them by.his speia1 mark belünd thd or of each 1 The two heads of bttle were then suspected b hove been to1en propety =3= upon appearing that in his travel permit, which was tendered before this court as 711hibit P.1, though showing that.he wa.travelling from Ikweha village, to Pangs through Chimala, ticI not indicate that hewas also to take with..him the two heads of cattle. That, however, has. been tdtally denied by .the accused who claimed, in his dsfeice that it was vr trl ,he was on his way, to,.Isupilo prison to visit 1üsbrother-4nlaw that or meing one • militiaman he got stopped and suspected to be a cattle thief and then took him to the village leadership at iyolo.lo village, who subsequently reported the matter at dafinga °Pblic station. • The main issues therefore are whether or not the accused was ever found with any heads of cattle, and whether, if it be acepted that the accused was so found with heads of cattle as alleged, the same have been • provedHthe stolen property of the P.Y.5. Afer careful examination and consjderaton of the pr6stiti6Iie\rideñce we are of the uxianimous opinion that the cIarge against the accused has no' been proved beyond all reasonable doubt0 For whils the evidence as ad.uced. • by the P..l, P..1 02 and the P,'7.3, is all in unison, on fact that on 3/9/84 the accused was arrested at their village which is Nyololo village while in possession of two bulls of which one was black and the other white which they suspected to have been stolei property and • later harded the same to the 2.1,5 after identifying the same through his special mark put behind the JMr of each of them, such evidence ha been ditriQay contradicted by the evidence of the POW, 5, the complainant and supposed omer of the two heads of cattle. This is so in the following respcts. First while it is the el,idenQe of both the P.'Y..l, and P. J3 that the heads of cattle found with the accused were all bulls, it is the evidence th of the P.7,5of such two heads of cattle handed to him one was a bull and the other waç a cow; while it is again the evidence of the P,! O 1 7 2,1.2 and P.W.3 that of such two heads of cattle one ;1.:s black and the other Was white, it is the P,W05 l s evidence that the bull Was black, Wiilc the cOWWas greyish;, and finally, while it is the evidence .of the P,W,l, P T.2 id that the P1,5 Was able to identify the two heads of cattle 1iru'ii his special mark put behind the ear of each of the two heads of cattle, the P.W.5 claimèd.that he so id.e-rhfied. the two heads of cattle thro -ulgh his special mark imprinted on: the right hindl of each of the two heads of cattle. That then has left us to wonder as to whether the accused was, in fact, found. f with any heads of cattle at all,, Why all that ooiitraclictions? '!as that not a frame up, in :tb.o light of -the P,W5's allegations that the accused. was a notoribus cattle rustler who had been declared uxivanted at LIapogoro villco? ::ven if it be accepted that what the PI'I.l, P,2 and the PW43, testified upon was a truthful account, • - it oerbainly cannot be said 'hat the heads of cattle found with him .. were those 1elo4ging to the as charged. Thaat would, however, • have constituted the offence o being found in possession of property supe.c'ted to have been stolen.. We are not however, prepared to accept the evidence of the ihl, Ph2 and P,W,3 as all a truthful account, for such allged heads of cattle were not even seen by ai'iy of the police officers to W!OL1 the thct had been reported, and the coLrac1ictions are inconceivable. ie are, b.erefore, prepared. to let. the accused have the bcnofii of our doubt 1 Accordin,,':ly, we acquit him of the 'offence charged. Delivered in Chambers at hbcya, this 28th clay of July 1989, .nthe. presence of iwampoma, lced state Attoey trainee, the accused having absconded. S - R. J i 1AIKASU - JUDGE 2 8 /7/1989. hr. Thoras 3angu (s'd.) •.. Lay member 2 r, iTartin ilgedzi (si ) La,j o 1ber