10050606 TZHC Mwanza 1

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 310 OF 2004 ( Original Cr. Case No. 46 of 2003 of thk District Court Bunda of at Bunda Before: R. B. MAGANGA, :/)istrict Magistriili!!J) ···,· ., . •.. f,:. THE DIRECTOR OF PUBLIC PROSECUTIONS . ........................ APPl:lLANT . Versus KIRUKU MWIKABI ..................•...................................... RESPONDENT JUDGEMENT R. M. RWEYEMAMU, Judge: T'1e Republic unsuccessfully prosecuted Kiruku Mwikwabi for J cattle theft, in Bunda District court Cr. Case 46/2003. Dissatisfied with the court's acquittal decision, they bave appealed to this court, impugning that decision on two grounds namely, .. ' ' 1. That, the Honourable Magistrate erred in law and fact for. not taking into consideration the eyidence of Pw1, Pw 2 and Pw 3 together which clearly establistied that there was cattle ! . stealing by the accused. [ · 2. That, the Honourable Magistrate er~ d in law and fact in not paying atte.ntion to the doctrine of r cent possession; On appeal, Mr. Bulashi ·Sf Attorney re resented- the Republic/ . appellant and Mr. Hezron Advocate, the resp ndent. 1 ·' Before going into the grounds of appeal, I find: it pertinent to _f' . give in brief the facts and evidence before the trial court: The prosecution's version was that on 11/8/2003 at 11.00 pm, Pw 1 was asleep at home. He heard noise from his kraal, went out and checked but found nothing amiss. In the morning about 6;00 am, he went outside his house ar1d saw Pw 2 one Chacha and his young brother, they asked him why he had not gone in: response to an alarm - on .. enquiring about the reason for the alarm, they told him his cattle had been stolen. He then checked his kraal and noticed that 14 herds were missing. His cattle had marks 'MK' - initials of his name Mgowi Kibara. They then led him to where the alarm had been raised. There he found a lot of people with the accused/respondent with 12 herds of cattle, two of which he identified as his. They told him it was the accused who had stolen his cattle - which they had .retrieved from. his kraal. Pw 2 and Pw 3 are members of a traditional vigilante group (sungusungu). The two allegedly found the appellant in possession of 2 herds of cattle ih the following circumst~nces. ·. . I About 11.00 pm they were ordered~~ Pw4 to go and arrest one Juma Marwa for cattle theft. On the way, they saw 2 people with 2 herds of cattle. These were the appellant 1nd another. They trailed slowly behind until the cattle were put in the appellant's kraal. They then arrested the appellant while his cdlleague ··escaped. In the appellant's kraal, they found mixed with ot~er (12) herds, (also seen · by Pw5, the village chair when he answere the alarm) 2 herds with: mark MK. Pw4 the head of sungusungu als answered the .alarm arid ~ gave a similar account. They found the ppellant already beaten 2 ·....:: - ·. _. ·\:<, ,~ I .,' unconscious Pw5 was the one who had sent Pw 2 and Pw 3 with a letter (l to arrest one Juma Mangera. He gave them the letter on 11/4/2003 about 10 am. I find it curious that the person who Pi¢ & Pw1 were sent to arrest was not arrested - and the court· was told nothing . further on that issue. In defense, the accused partly supported the prosecution's story that he was 'arrested in his house and his cattle taken - .a version supported by his wife Dw 2 • He was taken to the village office where he found 3 people with the disput~d 2 herds of cattle. He was forced to accept their possession. He refused and was then beaten . .' He basically denied any wrongdoing. He was then . beaten unconscious .and later arrested and charged. The trial court disbelieved Pw 2 & Pw 3's version· that they saw the appellant on the way with the two herds - then followed him and. arrested him at his home where he had put the cattle in his kraal. The trial court found the defense story plausible, and·. in my opinion, that conclusion can't be faulted. For one I tind i no basis to disturb the trial court's finding on credibility, furthe;r, I find· the conclusions reached to be based on plausible reasoninb. As submitted by Hezron · Advocate, the trial court •properly . dir~hed . ,I itself .regarding the evidence of Pw 2 & Pw 3 • Their evidenc~ does not establish the appellant as a thief directly or unde the doctr_ine of recent possession. That .evidence was cont adictory regarding their. identification of the appellant on the wa - with 2 herds of cattle. One says they did identify, the other that it was too dark to identify anybody. 3 J • '· Regarding possession, the evidence~:of the two is not convincing· (7 . that the 2 herds of cattle were in the apRellant's kraal. Infact Pw 2 ·& ' .I Pw 3's testimonies if anything, raise more suspicion on the prosecution's version. The two were· sent by Pw4 earlier, before cattle. were stolen from Pw 1, the alleged recovery of 2 herds happened. shortly after, leaving a prudent mind to wonder, what could have , happened to the other 12 herds in such a short period; why did Pw 2 & Pw3 not raise an alarm immediately they saw the appellant with 2 herds in the dark; why did they decide to brake into his kraal when by then, they had no knowledge that Pw 1's herds had been stolen - · given that the person they had · been ~ent by Pw4 . to arrest was different; why did the two not complete their mission? Under the circumstances of this case, it may not be unfounded speculation to conclude that the person they had originally been sent to arrest, was· indeed a cattle thief, that Pw 2 & Pw 3 were 'compromised and decided to wrongly implicate the appellant by planting only 2 out of the 14 stolen herds on the appellant instead of ~he real ·thief, leaving the l . ·. • I • real culprit who ever he was, to escape i with the rest of the loot I . . without blemish. · All in all, I find that the case agai j st the appeilant was not proved, confirm the trial court's decisio and dismiss the DPP's · appeal. "It is so ordered." R. M. RWEYEM JUDGE 6/6/2005