19961016 TZHC Mtwara

~~ ts.rn.. IN THE HIGH COURT OF TANZANIA AT MTWARA CRIMINAL APPEAL NO. 83 OF 1996 ORIGINAL CRlMINAL CASE NOo 73 OF 1995 OF THE DISTRICT COURT OF MTWARA AT MTWARA BEFORE: Golie CHABRUMA, ESQ.,, P .. D. MAGISTRATE MATHAYO JOSEPHoo••···········APPELLANT versus: THE REPUBLICoooooooooooooooooRESPONDENT JUDGMENT . The district court of Mtwara sentenced the· appellant, Mathayo Jioseph, t o ~ years imprisonment, consequent upon a conviction for Being in possession of a goat suspected of having been stolen or unlawfully . acquired, contrary to section 312(b) of the Penal Code. He felt aggrieved, hence this appeal. The appellant entered an appearance before me and conducted the . appeal himself, in the presence of Mro Malamsha, learned Senior State Attorney, who declined to support the conviction and sentence. The case for the prosecution was this. Selemani Kaisi PW1 sells raw and roasted goat• s meat at Lang 9 ata Pombe Shop in Mtwara Town. In the morning of 18_February 1992 the appellant arrived at the pombe shop with a black female goat looking for a buyer. The appellant, according to Selemani PW1, had previously sold to him a goat which got him ..int• problems. So upon seeing the appellant with the go~t, Selemani PW1 suspected him and sent for the police. Shortly thereafter S/Sgt Rashidi PW2 arrived there and found Selemani PW1 and appellant negotiating for the price of the goato S/Sgt Rashidi PW2 asked the appellant for the permit of the goat. The appellant did not have any permit. The appellant was taken to the police : station where he claimed that th~ goat belonged to Thobias Hokororo who had requested him to look for a.buyer. The appellant reiterated before the trial court what he had told the police. In the morning of that day Thobias Hokororo, who was known to him, took the got to him and requested him to sell it for him. Thobias did not have a permit, so they went to the Ward Executive Officer with the goat for a permito They came across Mohamed Rashidi DW1 who testified to have seen them with the goat, and to have heard Thobias telling the appellant that he had brought the goat to him for saleo They could not find the WEO, .,.,./2000. 2 so the appellant went to·Lan~•ata pombe shop to look for a buyer of the '. goato It.would appear that the appellant also sells raw and roas~ed meat I' at the pombe shop. Let me point out at the outset that two matters at_ once arrested my attention in this case. Firstli, the credibility of Selemani PW1 appeared to have been questionable and his evidence ought to have been weighted with cautiono He was business rival of the appellant in that they were both engaged in more or less same business. He portrayed the picture that he had absolutely nothing to do with the appellant and the goat at the pombe shop and that he called for the police as soon as he saw the appellant with the goat, xet he was found by the policeman PW2 negotia~ing with the appellant for the price of the goat. Secondly, the convictiqn of the appellant was solely founded upon his failure to produce a penmit for the goat. But the absence of the permit per se was not necessarily indicative of unlawful possession. So many people lawfully own and possess property, including livestock, for which they hold no permit. A regard should be had to all the circumstances of a case. The burden of proof is on an accused person to give a reasonable explanation as·to how he came by the property suspected to have been stolen or.unlawfully obtained. But this burden is not a heavy one. It suffices if an accused gives before a trial court an account which might reasonably be true and which is consistent with innocent possession. In this case, the appellant gave an explanation as to how he had come by the goat. He summoned a witness who enhanced the explanation. That explanation would account for the fact that the appellant was openly looking for a buyer of the goat at the pombe shop, rather than slaughtering it and selling the meat. I would respectfully agree with Mr,; Malamsha that the account given by the appellant was, in all the circumstances, quite plausible, and that it was unjustifiably rejected by the trial court. I am satisfied that the evidence before the trial court fell short of establishing the guilt of the appellant beyond reasonable doubt. I accordingly allow the appeal, quash the conviction, set aside the immediate release held. I also goat to the B. P. MOSHI JUDGEo •••/3 ••• 3 MTWARAo 16 October 1996. For Appellant: Presento For Republic: Mr. Malamsha, S.SoA. I certify that this is a true and correct ,co(the original Judgment, 4v DISTR~-REGISTRAR MTWARl\.o