19760507 TZHC Arusha

rT mYT' -1 TT JIN Lf1i! n OLULT OF TANZAi'IA AT APPELlATE JURISDICTION HIGH COURT CRII:INAL APPEAL NO. 221 OF 1975 IT OPLIG-INAL CRIi..INAL CASE NO. 34 OF 1975 OF THE DISTRICT COURT OF HANDENI DISIRICT AT RAI'DENI BEFORE: J. N. B. 1, U1O, Eq., District igistrate HASSAHI HEi'•iDI DOGOLI APPELLANT (Original Accused) versus THEREPUBLIC .................. .. ...,RESPODENT. (Original osecutor) JIIEbT ITYALALI, J. ... The apuellant was charged. aid convicted in the district Court of Handoni with the offence of cattle theft c/s 268 of the Penal Oode a nd was senenced t to the statutory minimum sentence of 5 years jail under the hiniinuin Sentences Act 1972 and was ordered to pay shi.5001= com.ensation under the mandatory provisions of the Act. He is now appealing to this Court against conviction, sentence and order. The facts of the case according to the prosecution are that at about midday on the 12/2/7 5 P .W .2 was herding the cattle of P.1.1 in the pasture when the appellant, accompanied by two Masai tribesaon appeared and took P.1.2 by surprise and the aipe1iant seized and broke P.1.2's bow and arrows while The two has-ni,, companions took away one cow from the herd in tnc pee hu. P J.2 coalu. not raise any alarm at the tine since his.. asPäiliants threatened to ].cill him if he did so. After departure of the appellant and his two Masai compani6ns along with the cow, P.1,2 raised

an alarm and many people came. Later P.1.2 reported to P.1,1 who reported to the polic.e with the result that the appellant who lived in the same village as P.1.1 was apprehended and charged. The cow was however not recovered. The defence case at the trial consisted in a general denial of the prosecution case and's ..a assertion that he was arrested for no reason known to him. Now, the prosecution case contains a number of unsatisfactory featuses which cannot be explained on the evidence on record. P.7.2 did not show in his evidence how he was caudht by surprise in broad daylight, when he was armed with a bow and arrows. Secondly, P.1.2 claims to have known theppelia nt verywell and the appellant lived in the same vil1ae as P.1.1. It is unusual that if people caine in response to P.W.2 1 s alarm, there should have been no attenipt to loQate trio appellant that very dy but instead P.7.2 contented himself with reporting to the cattle owner tJie following day. Ithink .......... /2 1-11 - 2 - f I think there is a probability the: P.W.2 COuld have stolen the cow and picked on the appellant to divert suspicion away from hinself, since not oven a sinilo person was. called to testify in court that he heard an alarm made by PW.2. L. Mwalc Learned State Attorney does not seek to supPort the conviction and I ajroe with him. The case for the prosecution was not proveci beyond reasonable

doubt and the conviction is hereby cjuashdd and the sentence and order is set aside with a direction that the appellant be released from jail forthwith unless detained therein for other lawful cause. (F. L.' I\TYALLI) . JUGJ. • Judenont delivered this sio day of 7th. May 1976 in open, court at Arua.ia in the presence of Mr. Mwale,, State AttorncT for Republic and the absence of appellant who did not wish be appear. / / (F L V1JLI) PLN/UTPIT. 7;