conv matto so sakara vs republic 2008 tzhc 94 6 october 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HC. CRIMINAL APPEAL NO. 05 OF 2007 (Original Cr. Case No. 22 of2006 of the District Court of Sengerema District at Sengerema, before F. K. S. Lwiiia SDM) CONV. MATTO s/o SAKARA.......................... APPELLANT!1 !I (Original Accused)" Versus THE REPUBLIC............................................. RESPONDENT (Original Prosecutor) JUDGMENT 06.10.2008 - 10.10.2008 G. K. RWAKIBARILA. 3 The appellant Matto s/o Sakara was convicted of cattle .theft I c/’s 268 of the Penal Code Cap. 16 in Sengerema District Court i i ii ! . ! • i -I;!, Criminal Case No. 22 of 2006 and sentenced.; to, five years, imprisonment. He felt aggrieved by his conviction arid sentence and lodged this appeal. It appears from records of the trial court that Kafunza Ilyamchele and Bulyamheke villages in Sengerema District within Mwanza Region are not too far from each other. Some residents of those villages like PW1 Machele s/o Mahelo keep cows. And on 04.01.2005 this PW1 passed for custody his bull to his relative Kasokola Mirombo who is now a deceased. That bull was black, with I i1 blackish spots on its forehead. But after a few days, that bull disappered. What tend to implicate appellant in this matter is that pn 29.11.2005 he complained to PW4 Fabian Zacharia who was" Bulyamheke village chairman that his two cows were stolen. Bulyamheke villagers searched for both cows but failed to get them. However on 01.12.2005, a certain cow joined other cows in appellant's compound. Several witnesses who testified for the prosecution like PW1 asserted that the cow which joined,the heldjin if f J ,| • r'U Ijj appellant's compound resembled the bull which missed! while in possession of deceased Kasokola Mirombo. Ms Tibirengwa, learned state attorney who appeared for the Republic in this appeal did not support the appellant's conviction. She correctly put it that appellant was never found in possession of the said stolen bull which belonged to PW1 Machele s/o Maheto. That version is similar with appellant's defence version when he stated that the bull which returned to his compound was among his two cows which were missing. So that Ms Tibirengwa was correct for not supporting the conviction because the cow which allegedly! returned to appellant's compound in November, 2005 was nbt necessarily the one which missed from deceased Kasokola Mirombo's compound much earlier in 2005. The appellant did not attend in court during hearing of this appeal because he opted the appeal to be heard in his absence^ But what has been clarified show satisfactorily how he was not implicated in stealing the said black bull with blackish spots on its forehead. ?. Therefore appellant's conviction is quashed and the sentence of five years imprisonment is set aside. He should be released immediately from jail unless otherwise lawfully confined there foj^ other reasons. G. K. Rwakibarila JUDGE 06.10.2008 Date: 10/10/2008 Coram: Hon. G. K. Rwakibarila. J Appellant: Absent For Republic: Absent B/C: A. Kaserero. Court: Judgment delivered at absence of appellant and respondent at Mwanza this 10th day of.October, 2008 and right for appeal to be communicated to parties. At Mwanza G. K. RWAKIBARILA 10.10.2008 JUDGE