19710908 TZHC Arusha

; br4-t -4C,,, i~ IN THE HIG.. COURT OF TANZANIA AT ARUSHA

APPSLLATE JURISDICTION CRIV INAL APPEAL NO % 75 OF 1971 ORIGINAL CRIMINAL CASE NO. •7 OF 1969 OF THE DISTRICT COUkT OF HANANG' DISTRICT AT BABATI Before L.A.L. Mgonja, Esq., District Magistrate GIDARAGETI PEALI .... ......................... APPELLANT/ACCUSED versus THEREPUBLIC ..................... . .......... RESPONJENT/PROSECUTOR CILRGE: Cattle theft contrary to section 268 ef tne Penal Code Cap. 16 of the Laws and Minimum Sentence Act. 29/69. J U D 0 lvi E N T KWIKIiYIA, AG. J. The complainant's cattle were stolen when his - uaa broken into on the night of 23rd Decesaber, 1962. He went to report to the Police, after disovering the theft. Altogether eight heads of cattle were stolen. In December, 1963 one Mohamed Ali was arrested by the Police after he was fduiid in possession of one of the stolen heads of cattle. The cow whih was found with Mohamed (wilo gave evidence at the trial PW 2) was black. It bore the complainant's brand "BARAK N T his cow and ". nine others seized from Mohamed were impounded by the Police in their holding t pan at iTlongero. Some arrests were made but somewhow no complaIt was lodged in court. Ef forts were being rndo at tee same time to cOntact thi appellant who had been named by Mohamed and other suspects. When the appellant was traced at long last, he was arraigned 'before the Mbulu District Court on 17/11/69, seven years after the alleged

offence was committed* His trial did not commence till 2.4.7$ although the prosecution had all that .tme to prepare their case they continued seeking adjournmehts with the result that the trial was delaed hopelessly. During all this time, they appellant was remanded in custody. During the trial Moharned and another witness (Itambu Msangha) told the court that the appellant and two others gave Mohamed the cow in exchange for two calves. There was no evidence to show that the cow alleged to have been given to Mohamed was the same as the one identified by the complainant to be his. The trial court on its part failed to address its mind to this question the determination of which was crucial to the •pr*se- cu-tion case. T he failure to identify the cow which the appellant exchanged with M 0hamed was so material as to make the prosecution case weak. he fact that the prosecution were at the time of the tri1 not in a position to produce the cow for identification leaves one woner; whether the tase should have been brought in the first place. The learned magistrate who convicted the appel1ant did not consider the law sufficiently to explain why he found the appellant ailty only of receiving the stolencow, and not the actual thief as he was'charged. He misdirected himself when he said:— , "However, on the strenghth of the evidence before me, I am not conviced that the prosecution has

successfully proved the offence of cattle theft against the accused person." and proceeded to find the appellant guilty receiving the stolen cow. It rnUt be pointed .ct, with all respect, that the offence of cattle theft as defthd r J. . - r I I ., . . . . 1 4. I - 2 - by the Stock Tfttft Ordinance includes guiltily receiving stolen cattle. So that the distinction which the learned magistrate sought to make was unnecessary if not misconceived. If he was satisfied that the 'prosecution had proved that the appellant was either the actual thief or a gL:ilt/ receiver, the learned magistrate ought to have found the appellant guilty as charged. The learned magistrate must have fallen into this error because the rosecut3.on case was weak an d one wou agree with Mm that the prosecution had "not successfully proved the offence of cattle theft." Such being the case there was no justification for holding the apellant guilty. It i particulary disturbing to note tLat the prosecution took many years to investigate the case. One w'ndors how the witnesses could remeber the evidence after all t...at time. Delays like tiis one cause the public to raise angry voices against the law - onforcingauthorities. They mast for that reason be. avoided. If there is insufficient evidence the suspects must be released until such time when evidence will be available. In this case the appellant who was in

custody for a long time before being convicted has suffered another period of imprisonment for some months. For the reasons gone into this judgment, it is clear that he ought not to have been arraigned at all. The evidence against him was weakened when the stole. cow was disposed. The other witnesses in the case were themselves originally suspects. As such they had every reason to tell lies against the appellant. M0hamed Ali brought his brother in law Itambura as his witness. He could not be expected to give evidence against his relative. It would therefore be unsafe to uphold the appellani. 's conviction and it is hereby quashed. The sentence thereof is set aside. Unless lie is held for some other lawful cause, the appellant should be released forthwith. Arusha— 8/9/71 (M . H. A. Ki.JIKIMA) AG. J1J D G E jsm