19741203 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT MWANZA. CRIMINAL APPEAL NO0" 207 OF 1974 Original Criminal Case No. 73 ,f 1973 of the District Cáurt of Musoma District at MusOma before I. A. Nyamakato, Esq,, District Magistrate ELIASORANDO .................. • 0 0 0 • • ....... APPELLANT versus THE REPUBLIC o.6*00000000000000.0000000064000000 RESPONDENT CHARGE: Cattle theft c/ss 268 and 265 of the Pnal Cede. 11 JUDGMENT SAIDI, C.J. The appellant Elias Orando and two other men who escaped before the trial was concluded were chargei with cattle stealing before the District Court of Nusoma. The appellant I Lto was convicted as charged and was sentencedive years imprisonment. Briefly stated the facts of the case appear to show that on the night of 24th January, 1973, six ca'tle were stolen from the house of Arap Rono at Tahita Village in Kiabakari area within the District of Musoma. An alarm was raised by Elias Orando in the following morning and his neighbours who answered the alarm txied ta locate the animals by following the foot—prints. The appellant is 'one of the persons who answered the alarm and they walked for a long distance following the tracks along which the animals passed0 While they were resting after feeling tired in finding the animals the villagers discussed about where each one of them was in the previous night0 The appe1lt was unable to explain exactly or say to the satisfaction of the others as to hiswhereabouts in that night, He was beaten severely and due to this beating and the fears that he would have been killed he admitted that he is one of the thieves and he promised to go and show out where he had hidden the stolen animals0 Whilst following this area where the animals were supposed to be he fell ill,due to the beating and he was taken to hospital in Musoma. Thereafter the animals were traced in the hands of the other two men James Oduma and Osanga Okunu who escaped ruring the trial. At this trial the appellant explained why he admitted that e wAs óieof the thieves adding that if he''did not do so he'would have been killed by 'the crowd. He denied having been involved in this theft. The learned trial magistrate did not believe him and found hjm guilty as 'charged and sentenced 'him to 'five' years iinpri sonment, I, '2. I wol areeithko the views of the lea-med State Attorney., Mrs.0 Lut.atinduka., that there was not sufficient evidence to connect the appellant with the theft of these animals and that he admitted having taken part out of his fear that he would have been killed by his fellow village men who had undertaken to beat him up for no reason The reasons the appellant gave for his being beaten was that he had at one time made the daughter of the complainant pregnant and they had a case in the village on this issue.. So it is clear that the relationship between the complainant and the appellant was not good and this might be one of the contributory factors which led to his pursuading the villagers to beat him up as having taken part in the theft of the cattle Which he may not have done at all.. On these facts I allow the appeal, quash the conviction., set aside the sentence and crder the release of the a.ppeliat in so far as this charge is concerned.. Delivered in Court at Dar es Salaarn this 3rd •day of Uoember., 1974. 2j (A. Saidi) CHIEF JUSTICE