19720404 TZHC Dodoma2

ilA II-H COURT OF /Z;i2 A IN T Q-pQ. ./&PPLLTE JJRIDICTIc.J. HIGII OOLOTT CI IiL AEL iTO. 14 O 1 972 c iLi 702 QF 1971 01.IcIJ'L C L T Of the District Court of Sin'ida District at SinO'ida4 Before; J..A Nroso.... ............. Roident Naistrate, Kule s/c Kimwzna.... •.. 0•• ... •S4 A1Dpellnt (Oriinai AcuecI) versus The Republi.. . . • •.,• . Reepoaent (Oriinal Prosecutor) e; Cattle theft c/ 268 a1 265 o'. e. .PnaJ Coa, .CTZAVA J. The appe1lant fo iras cr1 i..ially ciar ; ud with cattle—theft 1J53foujad ao uLl of o ence bi. ~ a il t -T of recei-i2ag he cottle it to be etol'm oroperty c/s 311 1 ) of the PenRl Code and n-tonce1 to 3 ears i:i.risor: ent aud 24 s;rokes corporal punishment.. :Distisf1t irith t.e conviction and seatence he has appealed to this court. This areal was •.,d::ittcd for hoarinr. oc.in3e this court felt that th€re was iee for exa i1ant1oJ. as to:•hcther tile a(cnsed received the so id hee 1 of C: j Ti n lty J±Ot o 1L al t's stolen )roperty, or if ho had no such :uiJty iaio.wled : at the time he rcc,eive' e nc.d oL c lo Iac i 3 i c jeliere that it was feloniously obtained. There was also the question whether the non—pro3.uction of the head of cattle before the trial court as exhibit was fatal to the conviction. Briefly the facts a as 1'01101rs; Sonetime in Septenber 1970 one, iiht.r. kulo(P:ii ) had his three d of cattle stolen from his krnnl.. Inost,'ath - :io led to the - rèst, prosecution and conviction of one ka:cani, apparently son of the comulainant. ccordi11(, to the record Karau.i is now serving his sentence for the offence of cattlethoft. ometine in July 1971 Lkun found one of his missing three head of cattle in the homa of one lionve s/o Lymde(2h2). On being interrogated as to how he cane to be in possession of IJIkuu's head of cattle, he replied that the head of cattle was, with five others, brought to him by the accused who asked hi:i to keep the cattle for him(f or a ccused) as there was cattle epidemic in accused's village.. Tne accused i•Tao then traced ..d a:::'oto•. and eiontually charged with stealing the head of cattle. The learned trial Magistrate found that the evidence before him was more consistent with receiving the aniiml imowing it heare been stolen than with stealing it. He proceoded and invoked the provisions of section 187(1 ) of the Criminal Procedure Code and found tha accu.sad guilty of receiving the animal irnowing it to have bea stolen c/s 31L(4+ lo f the Penal Code. argued by the learned sate attorney the ~ rosecu­- jLy t ion in this case relied mainly 0:1 the testimony of Momve(PI2 who said that it was the accused who had brought the head of cattle to him. On the facts Ilouve was a person who had an interest of his own to serve. He kiew tu.at he had bean found in possession ox scolen property and he also know that ho could have been one of the accuseds.. In the cese of Ii 11 PRL VSiT (1960J Cri l .eports Vol 44 page o . •0000000 00000.,. ..... •/2. I he court dealing with a similar situation had this to say;- "Where it appears that a witness, whether a co-prisoner or a crown witness, nay have some purpose of his own to serve in LivinS evidence, it is desirable in practice that a warning should be jiven to the jury with reard to the danger of acting on his wacorrohorated evidence..,........- whether the witness can properly be classed as an accompl.ce or not". The learned state attorney argued that there was sufficient corroboration of Momve.'s evidence and also referred the court to the decision in BATHOLOi'O DkJL VS R (1969) C cseilo 300 which decision followed the above-quotted nglish decision regarding evidence of a prosecution witness who was himself found in possession of stolen property. It was argued that lionve's evidence received corroboration from the testimony of i1MIISI(P.I3) who related to the court that he was at 'oiave's house when the accused brought the head of cattle with five others to Nomve and asked Monve to keep the cattle for him.. As to the question of guilty knowledge on the part of the appellant, it was argued that once it was accepted that it was the accused who brought the head of cattle to PJZ's hone-stead the accused's d ial that he sent the head of cattle to hoiLive was inconsitent with iocence and that the learned trial Magistrate was entitled to draw a rse inference on the a cused. As for the non-production of the hed of cattle before the court as exhibit it was the iepublic's submission that there was other sufficient evidence before the court regarding identification of the head of cattle found in Momve's house as that of the compltinant. In support of this argument the court was referred to the decision by Platt J, as he then was, in TfSHILIKI I agree with the Republic that there was sufficient confirnatory evidence of Moave's testimony that it ws the accused who sent complainant's head of cattle to his home-sto:.d. This corroborative evidence is found in the testimony of Hamisi who was present and who witnessed the transaction. Acting on the evidence of Momve(PW2) corroborated as it was by the testimony of Hauisi(PW3) the learned Resident Magistrate was entled to find as a fact that it was the accused who sent the head of cattle to Mouve. As to the question of non-production of the head of cattle before the court I would say t - t it is always desirable indeed sometimes assential that an alleged -Z 1 .on property be produced before the court. Production of alleged -en property can only be dispensed with where there is other cogent and sufficient evidence re.:arding identification of the property and where the accused does not challenge the description as to identifica- tion given by prosecution witnesses. As there was sufficient identification of the head of cattle by the complainant as well as complainant's neighbours as that of the complainant and, this evidence having not been challenged by the accused who merely-denied sending the animal to Momve, production of the head of cattle was not necessary. I am in agreement with the Republic's argument that the trial Magistrato having found that it was the accused who sent tile animal to Mauve as he was on the evidence, perfectly entitled to hold, the total denial does not serve him any useful purpose The learned Magistrate was on the evidence right in rejecting accused's defence as nothing but bog -us. The appellant was rightly convicted as a guilty rece.vOr u/s 311(1) of the Penal Code.. The sentence of 3 years iuprisoni:ent was the statutory minimum under the law at that time Corporal punisbsent although mandatory at •the time of the conviction has since been over -taken by events - Section 12 of the Minimum sentences Act 1972-. The appellant is to suffer 3 years imprison- ment only. In he event this appeal is dismised in its entirety.. DOD01VIA/4/4/72. Desouza for the Republic. N.S. Accused absent and unreprosen-tog,