19720923 TZHC Mwanza

// W1 11c IN TIL, HIG- COJNI' OF iaIJZNL at iiwana hlGii , COU.dT CRIMlL PPAL NO. 324 OF 1972 OiI&II L ChIiL L CiSi NO 258 OF 1 972 OF THi DIoiICi CQUAT OF N, ivi ~ ,Ilb, DI2IC2 AT ThRIN Before A.G.a. KOROaO, Isq, ...,..0Neident Magistrate w:IT. • ,,. . .........„.... AP?U. YT versus -- Lii.. ii..PUBLIO * jPONlhj.,iJ T CHARGg Cattle theft c/s 268 and 265 of the Penal Code. OtEBBI. aL-kIkoY, J. - The appellant, IAM MJITA, was charged with and convictedof cattle theft contrary to sections 265 ano. 268 of the Penal Code code Capt 16. He was sentence d to suffer imprisonmeflt for 4 years, eabjct to confirmation by the High Court, The Sentence was subsequently confirmed. He was also ordered to suffer the then statutory corporal punishment of 24 strokes, but this has now been overtaken by events and that it is no longer enforceable punishment. He was ordered to compensate kL•ITIkU s/o CHACR by iving him 11 heads of cattle. He is now seekine' to appeal against his conviction, senttne and oraeres, The evidence, which the triii-t, accepted established that on the 21st of November, 1970, themplainant (Pu) kejt his 40. heads of cattle in the cattle pan, but at aba:,.4 p.m., ha was awaken by cattle noise. He went out. Upon checkinglia found that 12 heads of cattle wer. rnissin. One of these, K os a catrated ball. He raised alarm, and the group ahich gathered set out following the hoof prints. They followed them into 'te Kenya side, but.they were not successful. The party returned and.. jriformd the special police sc ; aad. At about 2 a.m on the 21st 'November 1970, according to P1 and P2, the appellant was seen on the Kenya side and he was stoaed. It was alleged, that the appe11ant was questioned about the castrated ball he had, and he told PW1 and P2 but it was his proerty, but PW1 did not believe hjm as ha saw the Tanzanian mark on the bull. 1hen this was pointcL out to the appellant, it was allegea that the appellant drew ou-t' his "sword” and threatened to cut Pl. P01, who was a sub-ohif. ofhis location, ordered P2 to raise alarm, and P2 did So. On hearina that the appellant tbok to heels and disappeared into the forest which was close to the place he was stop)c-d. The bull was seized and taken to kenya police. subsequently, it was collected by the Tanzania Plice, special sjuad, dho went to aenya side together with the complainant (P3). Upon ident.'fication, the bull and IV t, e appellant , ho w as arrested. a 'i eek after he had run away , brought to Tanzania. The bull itself waa Droaucad in court as exhibit P1. It had the a11eed official marks which was "C9PO" or "(9D0)'. It also had. a out mark on one of ita oars, and a hole in the other ear. It also had the out stripes.on one side of its face. Pv3 said that. they were the marks he haq fined on the castrated black bull, .ahibjt Fl. PW1 and Pi2 said that the bull the appellant had in his possession was hxhibit P1. They too .daacribad the marks 4hich made them identify it as the bull they sew with the appellant. In his d.efence, the appellant said that the offanclina bull was not found in his po$$eSSiOfl, but it was founcL together with five other heads of cattle of one Matonge. He said that he knew nothing about bxh. P1. The appellant inuicat.ea his desire to call witness, and he was allowed to ac so. Chah /o wita (DWI) said that he did /2, not know why he was being asked to give evidence han he knew nothing about this case. Thrcafter, the appellant was allowed saverl adjournments to call his other witness from Kenya side, but no vjitnass came to court. He was even let out and escorted by the poLic into Kenya side and checked to his satisfication, but he said, when he was brought back, that non of his witnesses were willing to give evidence in his defence as. they erc th rea t e nsdt by the police. In the circumstances, the jefence csa was closed ond the learned magistrate delivered his jaclge,aent. The leaed magistrate accepted tiio evidence of P,i and P2 and held, that- the appellant was found in possssjon of astoln castrated black bull, xh. P1, some hours after' theft, and he foundthat the explanation given by the appellant failed to raise araso,nable coubt in his mind. He was found guilty ascharged.. The petition contends that the learned trial magistrate erred in accepting the evitience of the prosecution. He said that it was physically impossi1e to walk such a distance from Tanzania side to Kenya side and be seen at 7 a.m. He sunitted that the distance was great. Therefore, he could not poseibly have been in Tanzania at 11 p.m. and by 7 a.m. in Kenya. At first the point lobks impressive, b.t I find that the evidence is on the contrary. The evidence 'showed that P3 lived ire a border village and. the I village where the appellant was found is also a border village, on the Kanya side. If Pe3 and his party were bla to cross over into Kenya. side the same night and reach a village one mile from that of P1J1'and return to their village during the same night this shoci that the distances, though not given, were not great and therefore could be covered in a matter of hours. Such being the case, 'I see nothing impossible when PW1 and 22 alleged that they found the appellant at their village at about? .a,m. P1 and P92 knew the appellant since childhood. He was bdrn in their village and grew up there, 'before ho 'moved on to the Tanzanian .side, He was, therefore not a stranger to them. Such being the c'se the finding of the learned trial magistrate that it was the appellant who .had posession of iixh. P1 cannot be lightly disturbed. The second part of his acfcncc was that theLial court Wred, in rejecting his defence as it w.s true 'that the said bull ws.faud with Matgo and, erred in not allowing to call his wnesses Th rcoru loft no reaconabic uoubt a thc appellant w ivcn evry conceivable opportunity and aid to gct hs witnesses Thexef ore, he cannot really complain of this vaez The learned magiraie gave his reasors for rjecti the defence. Therefore, having peru..cd the record, I find tnattne grounds of petition do not disclose a sufficient cause fo''äomp1ait gint his c5nviction. The sentence was found to be fair. •Th order of compensation is in, tarms of cattle. .Th oer might cause touble when implemented, but having rgard to the evidence 'iii this ease,.. is reasonable. Order: This appeal is heeby summarily rejoed. Delivered on the 23rd of September, 1972. /-• (z. N. £LINDY) JU.00-h. = == = = = 4.