MADUHU MASUNGA BARIADI CATTLE THEFT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA

AT SHINYANGA

CRIMINAL APPEAL REF. NO. 20240892000022489 MADUHU MASUNGA NDURU ......................................... APPELLANT

VERSUS REPUBLIC………………………………………….……..…… RESPONDENT [Appeal from the Decision of Bariadi District Court at Bariadi] (Hon. M.M. NYANGUSI SRM) dated the 29th day of February, 2024 in Criminal Case No. 44 of 2023 -----------

JUDGMENT 27th September & 29th November, 2024. S.M. KULITA, J. This is an appeal from Bariadi District Court. The Appellant herein, namely, Maduhu Masunga Nduru was charged before that said court for the offence of Cattle Theft, contrary to the provision of sections 258(1) and 265 of the Penal Code [Cap 16 RE 2022] in which he denied to have committed the said offence. He pleaded Not Guilty to the charge. 1 Brief history of the case as it can be gathered from the record is that, on the 19th day of September, 2023 the Street Chairman (PW2) for Nyangaka in Bariadi District received a call from the Village Militia Commander that the Appellant was at Kidinda Auction premise in Bariadi District selling a cow which was stolen from PW1 (the victim). That, the alleged owner of the cattle (PW1) who was somewhere else was notified through a mobile phone by the said Street Chairman (PW2). That, upon being so notified, PW1 went to Bariadi Police Station where the Appellant had already been taken upon the arrest by Police who were also notified of the incident by PW2. It is alleged that, there at the Police Station, PW1 identified the said cattle being his property which he had left at home before leaving for his working place. It is alleged that the Appellant had been selling the said cattle at a cheap price of Tsh. 400,000/= while its real price exceeds Tsh. 500,000/=. It was further

alleged that the appellant was interrogated and replied that the said cattle had just came to join with his cattle there at the auction premise from a place that he didn’t know. That, he just found it there together with his cattle. Upon trial being conducted, the Appellant was convicted and sentenced to the imprisonment term of 15 (fifteen) years. Aggrieved with both, conviction 2 and sentence, the Appellant lodged this appeal relying on four grounds which can be summarized into the following 3 (three) grounds; 1. That, the case at the trial court was not proved beyond reasonable doubt.

2. That, there was no independent witness called to testify for prosecution during trial.

3. That, the defense evidence was not considered in the impugned judgment. The matter was argued through oral submissions. The Respondent (Republic) is represented by Ms. Rose Kimaro, Learned State Attorney while the Appellant is unrepresented. In his oral submission in support of the appeal the appellant prayed for the grounds of appeal in his Petition to be adopted as the submission for his appeal. He concluded by praying for the appeal to be allowed and he accordingly be acquitted. In the reply thereto the Learned State Attorney, Ms. Rose Kimaro resisted the appeal. 3 Submitting a reply to the Appellant’s submission on the proof of the case at the subordinate court, the State Attorney, Ms. Rose Kimaro, stated that the case at the District Court was proved beyond reasonable doubt. She said that the record reveals that the victim (PW1) while he was at his working place he received a call from PW2, the Street Chairman for Nyangaka in Bariadi, that his cow has been found at Kidinda Auction premise and that the same was about to be sold by a person who was possessing it. The State Attorney further submitted that PW2 one Mdeli Masanja who is the Street Chairman for Nyangaka got the said information from the Village Militia Commander one Mwandu Nilla, before he had acted upon the matter which includes notifying the victim (PW1) and the Police. She said that, among the things that

the said Militia Commander had told him (PW2) was that the Appellant was selling the said cattle at a cheap price of Tsh. 400,000/= while its real marketing price exceeds Tsh. 500,000/=. She said that, in order to rescue it, PW2 enabled the appellant to be arrested and taken to the Police Station. The Counsel further averred that upon reaching at the Police Station, PW1 who is the righteous owner of the said cattle, identified it being his property. That, the said PW1 had left it at his home place before he had gone to his working place. The Counsel further 4 stated that PW1 identified the said cattle by its color that he had mentioned being brown, and the marks that he had put on its stomach and legs. The State Attorney stated that, at the Police Station the Seizure Certificate (exhibit P2) was filled. She further submitted that the trial court’s proceedings transpire at page 12 that a Police Officer (PW3) is the one who had gone to the scene and arrested the appellant upon the matter being reported at the Police Station. Thus, the appellant was taken thereto with that said cattle. She said that, before the trial court the said cow was admitted as exhibit P1, upon the same being tendered by PW1. For this submission, the Counsel concluded that the case at the trial court was proved at the required standard. For the reasons that I am going to state later, I reserve the State

Attorney’s submissions on the other grounds of appeal. There was no rejoinder from the Appellant, hence the submissions ended up there. From the above submissions, the issue to be determined is whether the case at the trial court was proved at the required standard, that is beyond all reasonable doubts. 5 Upon going through the record and the submissions of both parties I have noticed that there is no dispute that the Appellant herein was found holding one cattle which was not his property, at Kidinda Cattle Auction Centre in Bariadi. It is also undisputable that the said cow is the property of PW1. The issue is whether the Appellant did steal the said cattle. My analysis on this is as follows; according to the record and submissions, the core issue that led to the rise of this matter is the information that somebody Mwandu Nilla, the Militia Commander had given to PW2 (Mdeli Masanja), the Street Chairman for Nyangaka, Bariadi, that the appellant herein was seen at Kidinda Cattle Auction premises possessing a cow of which he was selling at a cheap price of Tsh. 400,000/= contrary to the market price which exceeds Tsh. 500,000/=, and that the said cow was the property of the victim herein (PW1). I went through the State Attorney’s submission before this court and noticed her stating that, the complainant/victim (PW1), upon been notified through a mobile phone by the Street

Chairman (PW2), went to Bariadi Police Station where he found the Appellant being detained. He also found that said cattle there at the Police Station. The victim (PW1) identified the cattle being his property by its color, being brown, as well as by pointing the peculiar marks 6 that the said cattle had on its stomach and legs. PW1 alleged that he had left the said cattle at home place, Nyangaka, before going to his working place at Giriku. Actually that is what transpires in the record. My finding on that is as follows; there is no dispute that the said cattle (exhibit P1) is the property of PW1, as even the appellant himself, who was found possessing it does not dispute this issue. He however alleges that, he found the said cattle mixed with his boss’ 6 (six) cattle that he was driving from the auction premise where he, in corporation with his employer had already sold others, and the said six had remained, they were not sold. It is in the trial court’s proceedings and the State Attorney’s submission that, some people used to approach the appellant while in possession of the said cattle and asked him about price for that said cattle. It was said that, the aim was to ascertain if the appellant was real selling it. The question that triggers my mind, is that, why those people didn’t appear to testify before the trial court if that was real done? This makes me to declare this

evidence unworthy of credit as the persons who presented it to court, that is, PW1 and PW2 had not perceived the said facts through their own sensory organs. The said testimony by the Prosecution at the trial court is nothing but hearsay, the evidence that has no worthy of credit before the court. 7 Further, the record transpires that the source of information as to what happened before the arrest of the appellant was narrated to PW2 (Mdeli Masanja), the street Chairman, by one Mwandu Nilla who is the Village Militia Commander. However, the said Militia Commander did not turn up to the trial court to give evidence. Thus the evidence of prosecution witnesses that the appellant had stolen the said cattle from PW1 is hearsay. In short, the victim (PW1) was told about the crime by the Village Chairman (PW2), who was so also told by somebody else, namely Mwandu Nilla, the Village Militia Commander, who had never been a witness at the trial court. Another thing that I find convenient to resolve is that, the appellant admits to have been found in possession of the victim’s cattle and that there were some people who used to approach him pretending to know the said cattle’s price, among the other cattle that the appellant had. The impugned judgment transpires that, the point that the trial Magistrate had relied upon in convicting the appellant was that, the Appellant used to reply

the questions upon been asked for the disputable cattle’s price, that it was Tsh. 400,000/=. The issue is, can it be a proof that the appellant had stolen the said cattle? My views on this is that, it is not. I say so because replying the question on price does not necessarily mean that the said person (appellant) 8 had the intention to sell it or otherwise to deprive the said cattle permanently. Further, there was no ample evidence as to whether the said cattle was lost while at the PW1’s home. PW1 said that he was somewhere else when he was informed about his cow being offered for sale at the auction premise. The appellant was found in possession of the cattle, but nobody witnessed him stealing the said property. Thus the appellant, as the recent possessor, burden of proof lies on him. In my view, for what the appellant had stated in his defense testimony, the trial court had to agree with him, that the said cattle had just mixed with the ones he was driving at the cattle auction premises. All in all, what happened cannot be regarded as theft. Another thing which has no clarity in the evidence of PW1 is, at what time did he leave his residential premises, where he alleges to have left his cow which was then stolen? I so ask because the record transpires that the said PW1 is alleged to have got the information during the afternoon while he was in job at somewhere Giriku. At

the same time the appellant is alleged to have been arrested at the same time, afternoon hours. Further, according to the appellant himself, he was in possession of the other 6 (six) cattle, the properties of his employer. As far as facts of the case are concerned, the 9 said stealing, if real done at PW1’s residential premises, should have been committed in some hours before. It can even be the morning hours. But the evidence in record reveals that, by the time he was arrested the appellant, together with his employer were through with the business for that day, that they had already sold some cattle in the auction and remained with 6 (six). The question is, at what time did the appellant go to the residential premise of PW1 and stole the said cattle? This is still a puzzle. It even makes me to think on either of the two; that, the said cow was not a property of PW1, or otherwise it was planted against the appellant so as to make it a source of claiming Tsh. 100,000/= mentioned by the appellant in his defense, as a means of resolving the matter. The record transpires PW1 claimed for that money from the appellant so that he could end up the matter. However, it was not paid, and that led the appellant to be charged. It is trite law that the criminal case should be proved beyond all reasonable doubts. Failure of that leads to the acquittal of the Accused Person. From what I have

endeavored to explain herein above, I find it unnecessary to make analysis on the remaining grounds of appeal, as the one that I have analyzed is sufficient to dispose of the matter in its entirely. 10 In upshot, I find the case against the Appellant was not proved beyond all reasonable doubts. The appeal is therefore allowed. The Appellant should thus be released from the Prison house, unless he is held for any other lawful cause. S.M. KULITA

JUDGE 29/11/2024 DATED at SHINYANGA this 29th day of November, 2024. S.M. KULITA

JUDGE 29/11/2024 11