19821119 TZHC Mbeya1

IN TI HIGH COURT OF TANZIJTIL A? MBEYA APPELLATE. JURISDICTION CRIMINAL AFEAL. NO.19 OF 1 8o (oR.IIN.AL CRIMINAL CASE NO366 OF 1979 OF THE DISTRICT COURT OF SUIV1I3L1WLNGA DISTRICT AT SUNBAWL1\TGA) BEPOREg U.J. LAWENA Esq., RESIDENT MAGI STRATE KASEMA NG'WAN.[INKWA: :.: : g APPELLANT (Original Accused.) versus THE REPUBLIC : ;°RSPONDE11T (Original ±rosecutor) • CHLRGE: Cattle theft c/ss 268 and 265 of the Penal Code. JUDGMENT 1VtRO 50 9. J Between September and December 3.978 58 head of atte belon'in tQ the auj Deyelomex 4fl::Sflor. weo 'to±en, a orporation or SJDECO/bore b±'and marks - SDC, on their thighs and back. On 21/1/79 twenty one out of the fifty eight stolen cattle were found in the catIe homas of the appellant. They all had the. umistakable brand. marks - S.D.Ce When challenged to explain how he got possession of the stolen cattle the appellant is said to have explaincd that he Louht thou from one Claudia (PW3) who was an. employee of SUDECO incharge 2of the cattle ranch. In his defence in court the appeflait said he had bought two head of cattle from Claudia in September, 1978 and thaton a second occassion he bought. 9 head of cattle, presumably from the same man ClaudiLo Under cross—examination he admitted that he imew the cattle belonged to SUDECO. When the trial court asked for his explanation regarding the other 10 SUDECO head of cattle (to make a total of 1) he said ../2 2 - they wre calves when brought , ± 0 him and that they were given to hith gratuitously by Claudia 0 Claudia, as would be expcted denied that he sold any cattle to the appe1lthit The ±rial court considered all the evidence received In court and was of the view that at the time the stolen cattle were found in the possession of the appellant, which was about four or so months after theft (if it is assumed that some of the cattle we'e stolen in September 1978) was rather' too long end therefore declined to invoke the doctrine of rócent posseeion to convict the appellant of theft of the cattle0 He, however, found the appellant a guilty receiver and consequently convicted him under section 311 of the Penal Code 0 It has been urged before me that thetrial court should not have believbd the evidence of PW3 Claudia who Would have every reason to deny that he ever sold cattle to the appellant0 I agree, but even if the evidence of denial by PW3 were iguored it wouid not avail the appellant to oscape criminal liability,.. His own admission that he imow the, cattle b1onged to StJDECO deprives him of any pretence that he also thought the cattle belonged to'Claudio, Apart from that no reasonable court vzould believe the naive statemert b' the appellant that Claudio would give him ten calvee gratuitously. Why would Claudio be so charitable towards the appellant? The appellant did not care to tl1 the court of his trialwhy such exceptional generosity should be accorded to him by Claudio... I an, wholly satisfied like the trial court that from whoever the appellant received the catt]e .. he must have known that either thGy had.heen stolen or some how unlawfully obtained. The conviction, in my opinion, cannot be faulted 0 It is therefore dIsmissed as without merit. Something however may be aid about the compensation order made by the learned trial magistrate. He ordered the appellant to compensate the Sumbawanga 3 ; Development Corporation with 37 head of cattle, these being the unrocovered cattle out of the 58 which had been stdlen0 That •drciet Wa obvidu1y miscorwoived. The appellant wa10 th hief d'. the cattle, at least bco'ding to ±iie court f±ndihg, nor Was there evidence that he had.reeiVe.al1 the 58 stolen oatt1e.. He may have roce±ved only the 21 hoad of cattle found in his possession, It was thbrefOre improper and unfair to saddle him with the rosponsi1ilitr for all the stolen cattle.0 I quan that oDderr, Save for this variation in the decision of the trial court, this appeal is dismissed. J A SO JUDGE AT MBEYA 19/11/82 JAM/ATM' lima,.