CRIMINAL APPEAL NO 95 OF 2022

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 95 OF 2022 (Originating from Criminal Case No. 3 of 2022 in the District Court of Masasi, at Masasi.) IBADI AMUR! HASSANI - -....... -.......................... —-............ APPELLANT VERSUS THE REPUBLIC -............ —........... ........................ RESPONDENT JUDGMENT Date of last Order: 14.08.2023 Date of Judgment: 10.11.2023 Ebrahim, J. The appellant, Ibadi Amur! Hassdni was charged with the offence of Cattle theft contrary to Section 268 (1) of the Penal Code [CAP 16 R.E. 2019 Now 2022]. It was alleged that on the 28ih day of December 2021, at 1800hrs at Namalembo Village, within Masasi District in Mtwara Page l of 8 Region, the appellant did steal nine (9) goats valued at TZS. 720,000/= the properties of one Maimuna D/O Swalehe. The appellant pleaded not guilty to the charge. Having heard the prosecution and defence side, the trial court was satisfied that the prosecution evidence had proven the offence. The appellant was convicted and sentenced to two (2) years imprisonment. In addition thereof, the appellant was ordered to pay compensation of Tanzania shillings Seven Hundred and Twenty thousand (720,000/=) after the completion of his jail term. Being dissatisfied with both the conviction and sentence passed by the trial court, the appellant lodged an appeal to this court raising four (4) grounds of appeal and two additional grounds of appeal. When the matter was called for hearing, the appellant appeared in person, unrepresented, whilst Ms. Farida M. Kiobya, learned State Attorney represented the respondent. The Appellant prayed to adopt his grounds of appeal. Responding to the 1st ground of appeal, Ms. Farida submitted that as per page 1 to 9 of the impugned judgment the Magistrate deeply Page 2 of 8 considered the evidence of PW3 and PW4 who were eye witnesses. They saw the appellant herding the goats he had stolen to Mangaka area. Submitting on the 2nd ground of appeal and 2nd additional ground of appeal together, she argued that prosecution paraded four (4) witnesses i.e., PW3 and PW4 who were eye witnesses as per page 15 of the court proceedings and they were consistent in their testimonies. PW3 testified that the appellant was herding the goats but he did not count them. His evidence was corroborated with the evidence of PW4 as per page 17 of the proceedings. Thus, prosecution case was proved beyond reasonable doubt. Arguing on the 3rd ground of appeal, on the complaint that the appellant’s defence of alibi was not considered; the learned State Attorney contended that the appellant did not give notice before the prosecution's case was closed. She added that the appellant raised the defence of alibi during his defence, and he admitted not to have informed the court that he shall rely on the defence of alibi as per Section 194 (4) (5) arid (6) of the Criminal Procedure Act [Cap. 20 R.E 2022]. The stated law requires the appellant (accused) to furnish Page 3 of 8 notice of alibi or else the court will not give due weight to the defence she said. She thus prayed for this ground of appeal to be dismissed. She submitted on the 4ih ground of appeal and lsfadditional ground of appeal together on the issue of identification and identification of goats. Ms. Farida argued that PW4 did not state number of goats and the appellant was identified. She referred to this court page 18 of the court proceedings where PW4 flashed a torch to the appellant and he greeted him. Also, the appellant and PW4 are living in Namalengwa village. They are neighbours. She referred to the case of Waziri Amani vs. R [1980] TLR 55. Thus, she prayed for the appeal to be dismissed. In his brief rejoinder, the appellant argued that he was arrested on New Year’s Eve (mkesha) with nothing. Having gone through the grounds of appeal, the submissions from both sides and the trial court’s records, I found that the main issue for determination of this matter is whether the appeal has merits or not. I wish to start with the 3rd ground of appeal on the issue of the defence of alibi. It is the appellant complaint that the defence of alibi was not considered by the trial court as the appellant raised such a defence Page 4 of 3 without giving notice. This issue need not detain me much as it is clear that the procedure where an accused intends to rely on the defence of alibi is clear under Section 194 (4) of the Criminal Procedure Act [Cap 20 R>E. 2022] , It should be noted that where an accused person intends to rely upon alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case. Therefore, as per the law the the appellant was bound to give notice before his reliance to the defence of alibi. Else, he should have given particulars before closing of prosecution case. However, the trial court is still required to consider such defence much as it might not give due weight. The same was considered by the trial court at page 9 - 10 of judgment and dismissed for not following the procedure. As to the 2 nd ground of appeal and 2nd additional ground of appeal, the appellant complained that the charge was not proved beyond reasonable doubt. On her side, Ms. Farida was of the view that the prosecution proved the charge against the appellant beyond all reasonable doubt based on the evidence of PW3 and PW4. Page 5 of 8 in proving the offence of cattle theft, the prosecution needs to prove the elements asportation and animus furandi; that they have to prove the allegation that the appellant stole the cattle of the victim. See the case of Ramadhani Kateile vs The Republic, Criminal Appeal No. 253 of 2010 (CAT at Mwanza Unreported). In the instant case, the prosecution side based on the evidence of PW3 and PW4 who were eye witnesses. PW3, testified at the trial court that on 29.12.2021 around 0500hrs he saw the appellant who is his uncle at Kawe area. He saw him herding the stolen goats. When responding to the cross-examination question, PW3 responded that he has never seen the appellant herding or keeping goats before at the village except on that day. PW4 also testified that he knows the appellant for sometime. On 29.12.2021 around 2000hrs he met with the appellant at Nyumulu area herding the stolen goafs and he greeted him. He was able to identify the appellant (accused) after flashing him with the torch which had heavy light. He was not able to identify the goats but to the fact that he had a knowledge of the stolen goats, he got suspicious of the goats. When responding to the cross-examination question, PW4 Page 6 of 8 responded that he has never heard or seen the appellant keeping goats before at Namalembo village. To prove that the appellant did steal the cattle, it is important to prove if the appellant was properly identified by PW3 and PW4. The case of Wdziri Amani vs Republic (1980) TLR. 250 has set up the following factors to be taken into consideration; first, the time the witness had the accused under observation; second, the distance at which he observed him, third, the condition in which such observation occurred, for instance, whether it was day or night (whether it was dark, if so, was there moonlight or hurricane lamp, etc.); fourth, whether the witness knew or has seen the accused before or not. Tailoring the above factors with the evidence presented in this case, the appellant was well identified because there was enough light as testified by the prosecution side and the appellant is the uncle of PW3. PW3, at around 0500hrs met with the appellant coming from Namalembo herding the stolen goats and he has never seen the appellant keeping goats. The appellant is also well-known by PW4 who identified the appellant directly and he was able even to greet the him when he was from Namalembo herding the stolen goats to Page 7 of 8 Mangaka road. Also, from the available evidence, the witnesses had an ample time to identify the appellant as PW4 had time to greet the appellant and PW3 knew the appellant before. The torch light also aided PW4 to identify the appellant. Therefore, I concur with the State's Attorney's argument that the appellant was well identified. Finally, I find that the evidence given by PW3 and PW4 who witnessed the appellant herding the stolen goats on the next day after the incident to be reliable and water tight. Conclusively, in the light of what I have stated above, I find this appeal to have no merit. I dismiss it and I uphold the conviction, sentence and orders of the trial court. R.A Ebrahim JUDGE Mtwara 10.11.2023. Page 8 of 8