19720711 TZHC Dodoma2

,. IN THE HIGH COURT OFTANZANIA AT DODOY S APPELLATE JISDICTION lila-H COURT CRhiiINAL APPEAL NO.36 of 1972 ORIGINAL CRIMINAL CASE NO., 175 OF 1971 OP THE DISTRICT COURT. OF MANYONI DLTICT AT MAYONI Before L. G. Rugimbana Esq0, • .. 0 ..........District Magistrate Meda slo Mgazi Chimbai Plazengo itppellants Nazengo N.pupa (Original Accused) Versus THE REPU3LIC. • • • • 0 oo o . . . .. ........ . . . Respoi'ident . (Original Prosecutor) Charge: Cattle theft c/c 268 and 265 of the Penal Code, Cap, 16 2 J_J_PJLE N T / NNZAVAS J — These are appeals from the decision of the district court of Manyoni in Criminal Case Mo, 175 of 1971 in which the three appellants wore jointly charged with and convicted of cattle theft c/ss 265 and 268 of the Penal code and each sentenced to 4 years imprisonment0 The first and the second accuseds were also to suffer 24 strokes corporal punishment0 The third accuseds age which was found to be over 45 years excused him from the cane0 The appeals have been consolidated0 The following facts are not at all in dispute: On the night of 27/9/71 — 28/9/71 10 head of cattle, the property of one, William (PW1) were stolen. An alarm was raised in the morning when the theft was discovered and villagers and neighbours participated in searching for the stolen cattle It is also not seriously in dispute that the searching party divided itself into three groups0 One of the groups included P.W.1, P,W.2 and P.W.4. AccoHing to the avideneetafter thig groip had 7a1ked for some distance in the bush towards Bahi area the roup spotted three people hustling ten head of cattle away0 P.W.1, P.W.2 and 2 0 W 0 4 related to the court that they recognized the three people as the three appellants0 Thealso testified to the court that they identified the ten head of cattle as those of the complainant (P,w1)0 All the three appellants gave a defence of alibi and brought witnesses in support of their defence. The learned dJstrict magistrate in his judgement believed the prosecüti.on so and coiW4cted the appellants as charged O 00 0 0 • 0 ./2 ,. -2--. The learned defence counsel has argued that the learned district magistrate should not have accepted the evidence of P.W.1 7 PW.2 and P,W,4 that they amply identified the three people they saw hustling cattle away as the three accuseds. He gave no reasons why the evidence of those' witnesses should not have been accepted. It was also argued that the fact that it took 12 days before the complainant (P 0 W 0 1) showed to the police the houses of the accused where they were arrested could mean that the complainant was not sure that the people he saw in the bush were the appellants0 The second ground of appeal is that there was no proper identification of the alleged ten head of cattle by the complainant before the court, and the court was referred to the decision in NASSORO VS. R. ( 1 9 67 ,H.O.D. 446. The Republic on the other hand argued that although the ten head of cattle were not discovered there was sufficient evidence to support the trial courts finding. In support of this argument the court was referred to the Kenya decision in R. K,page80 With respect to the learned state attorney the abovequottd . Kenya case is of tatally different facts from the present case. I would also say that it laid down a totaly different principle of lawfl There the question was whether an accused could be convicted of murder where the body of the deceased had not been found In the present case the Question is whether there was sufficient identification of the appellants by the three prosecution witnesses as the people who were seen hustling the ten head of cattle; and whether the cattle belonged to P,W.1, the complainant. The facts of this case are rather odd. On 28/9/72 the three prosecution witnesses saw three people hustling 10 head of cattle away, They alleged that they recognized the three people as the accuseds. They attempted to arrest them but they aro threatened by these people with lethal weapons (bow and ari and spears) and they rotreatvi They do not raise an alarm for more help from the villagers Inãtead they telephone to police The police takes about two weeks to investigate and arrest the accusods They are arrested but not one head of cattle is found with theme There can be no doubt that the convictions of the appellants were wholly based on the testimony of P,W,1, P.1,11.2 and P.14,4 who related to the court that they saw and identified the three people as the accused 0 My reading of the evidence of these witnesses before the lower court does not show ho they identified the accused as the three people they saw driving ten head of cattle away(, They all merely said that they recognized the three people as the accuseds 0 As it was held in LUDOVICO S/O_KASHAKU VS. R. (1967) H. 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