19750808 TZCA Dar es Salaam

I \ page 27. IN THE HIGH COURT OF TANZANIA ' AT DAR ES SALAAMo 1 ,..... 1 APPELLATE JURISDICTION . High Cou t Criminal Appeal No. 246 OF 1974 Orig:.i.nai c:.c:i..minal Case No. K.1.085 OF 1974 Before AeSo Semzeba, Esq; Resident Magistrate. MANUBHAI PATEL a o o o o o o a o o o .. o o_ o . o o a a-.. o o o o o APP ELL ANT versus THE REPUBLIC o o • ., o o o a o o • o o o a o .., o .. a a o o o . o o • RESPONDENT. JUDGMENTo KIMICHA,Jo This is an appeal against conviction and sentence. The appellant in this case was convicted on two counts namely Unlawful possession of Government Trophy contrary to section 49(1)(2) and 53 {1)(a) {Cl) (2A) (3) (4) {5) and (6) of the fauna Conservation Ordinance Cap. 302 and sentenced to a fine of Shs.2,000/- Indefault 6 months imprisonment. He was on the 2nd count convicted of failure to forthwith report possession of Government Trophy contrary to section 48 and 53 (1)(a)(c) and (2A) (3) (4) (5) and (6) of the fauna Conservation Ordinance Cap. 302 and sentenced to a fine of Shs.400/- Indefault 3 months imprisonment. The accused was on 23/8/75 at 7.45 aomo driving a l~..nd rover along the New Bagamoyo Roade He was stopped by two Police Officers and his vehicle searched. Eighteen tusks were found at the back of his land rover. Tme tuskscare the subject of the two counts of which he was convicted. His defence ~-n the lower court was that he had found the tusks abandoned at the side of the ro":r1. nlong Kilw::1, Road in the night of 22/8/74 at about 10.30 p.m. He was in ~he company of one Betrold Mtotelao 'He then decided to take them to a Game Office where they would get a prize. They consequently loaded the tusks on to the land rover and proceeded to D'Salaamo He further claimed that he was in the process of taking the tusks to a game office when he was stopped and searched by the police. He made a statement to the police immediately after his arrest in which he ommitted to mention Mra Mto-te·l~'s participation in the incident. lli'l considering whether the accused's testimooy could on a balance of probablity be true, the trial magistrate found that Betroed Mtotela was a ,f!eci:timus witness (D.2 in the lower court). Otherwise the Appellant would not have failed to mention such an important witness in his fipt ··.ment to the policeo He also held that the Appellant was ( at the point where he was stopped by the two police Officers) heading out of town and was not going to a game office as he allegedo He consequently convidted him as chargedo . \i The Api::cllant was represented by an advocate in the· lower court and in this court. But considering the submissions made on behalf of the. Appellant and after reading arid corisideririg the l_ower court record I am satisfied that the -trial court came to the right conclusion in convicting the Appellant., ,::he appeal is for the above reasons dismissed in 1 ts entirety o :. · 'iJliii~~i:ect1 :th· ot,cll 'c'bbit1:Yd.s·~'lzt1P~a:r·drt ntde-kmbir1;t19'7s~:;J.,. tv · . s-/jl(~-u,., M.P oK:,-- KIMICHA, JUDGEo , ll/1-V75 .. , • page 26, . Jll.DEJA: My lcrd, my le'.J.rned friend hr~s saicl thnt it was ray duty to disclose ~tolela Is rame. I still consider it was not my duty at al;t~ · It wa~ for the prosecution to do so. I did not CC"n~ide:t' it nor do I consider it now. .This omission, in my subnissiohi doos not effect the credibility. liis statenent to the police is , . su.bstentially the same 2-s to show why nnd where he found the tusks. If the production of the statement is<quite right, I used the word corroboration because· it is the ·word which W'.lS used by the legislature. The other issue is th2.t, the appellant said p.e told his grandmothef l My lord he hr.s no grandmother nncl he d:i.d not mention it. If it appuars in the proceedings it is just a nisconception; but he mentione! h::wing• infonned Bikubhai Patel. · My learned friend also mentioned something about the meeting .". place ;:0ne s2.y~~· to meet a~ the _caTvi~s and the other sr\YiJ:lS . 1 at th bus stop cannot be sc..id to be a discrepancy, because perh.nps they are at the same place. I take that the Republic does see the circumstances whioh strengtl:ls,n the case for the nppellant ..... Thank you my lord.· ORDER: Judgment reservec:. M.P .K. KINICHJ,., __ JUDG-E. ,___._ 8th August, 1975