19750430 TZHC Dodoma

f4L2' -a IN THE nIGH COWT OF I'1NZANIA 0 AT DODOMA HIGH COURT CRIMINAL APPEAL NO. 154 OF 1974 ORIGINAL CRIMINAL CASE NO. 184 OF 1973 OF THE DISTRICT COURT OF RUNGWE DISTRICT AT TUKUYU BEFORE N. D. NCHALLA ESQ, DISTRICT MAGISTRATE NPANGAJAMWANJEBELE APPELLANT (ORIGINAL ACCUSED) versus THE REPUBLIC RESPONDENT (OiIGINAL PROSECUTOR) CHARGE: Seven (7) counts stealing cattle c/s 265 and 268 of the Penal Code Cap,16 Vol.1 of the laws0 J U D G .M E N T MWESIUNO, AG J. Mpangaja s/o Mwanjebele who initially was charged with two others ended up in a trial with only one other by the name of Kibasi s/o Hwaka who finally got acquittédon all counts but Mpangaja was convicted on seven counts of receiving contrary to section 311(1) of the Penal Code and was sentenced to two years imprisonment on each count to run con- currently and bbe"onfirmed by this court0 Aggrieved by that decision of Tukuyu District Court he now. appeals to this court' against both convictions and reuJ'tant sentences. Clearly on perusal of the bulky records of the lower court that case raised complexity ihfactual and possibly ir riegal issues which appear to have been above the level of the, ttial magistrate as they appear to have posed great difficulties to the learned District Naistate Mr. Nchalla, who tried that case. Nevertheless, he seems to have tried his level best in'the conduct of the trial for which he'deserves some congratulatory messege from..this court, which I do hereby: transmit with great pleasure0 Now turning to the substance of the appeal itself there is no doubt that the appellant was convicted solely on circumstantial evidence of having been in possession of cattle that had been identified by their diverse owners as having earlier been stolen from them. As the learned trial magiqtrate, rightly, pointed out in his judgment the period from the alleged thefts of the said animals to the time they were seized by police while in possession of the appellant, running in sume instances, 'for several years, was so long as to make the deoctrine of recent possession ineffectively applicable. That having been the case the appellant could not be sustainably convicted of theft of those anim.s some ofwhich admittedly, were c& born in between those two dates, that is date of alleged theft, and date of alleged discoyery of possession of the animals by the appellant. To quote the trial magistrate's own words, which appear on page 9 of his tped judgment, he states,: "Morover these offences are alleged to have been committed many years ago. In some,of the counts the offences are said to have been committed about seven years ago. This time is - quite long for any one to fbrge,t and particularly an illi,te- ' rate person". ' '' - 2 - At yet another stage in the same judgment as appearing on page 10 the magistrate Is recorded as having enphatically stated: "However, as I said before the time that has elapsed since these offences in the charge were committed is too l•ng to invoke the doctrine of recent possession0 The time caiat has elapsed of these offences ranges from 1967 to 1972. The property involved are cows. To me cows are property of such nature as can so easily exchange hands. Cows change hands so easily. A period of six months woild be too long to invoke the doctrine of recent possession in respect of cattle theft. Hence in the circumstances of this case Mpangaja cannot be convicted for cattle theft .' ...... " Having so commendably directed hisi mind and address to the doctrine of recent possession, it appears really strange to me that immediately the same magistrate turns around, and indeed, in disregard of the apparently satisfactory explanation of the accused person (appellant) as to how those cattle came into his possession, and says again - I quote: ".........,.,, but can be convicted as a guilty receiver of those cows under section 311(1) of the Penal Code pursuant to section 187(1) of the Criminal Procedure Code Cap.20. I have already discussed that there is enough evidence that establishes the offence of receiving against 1st accused Mpangaja in this case. I am satisfied that the prosecution has established the offences of receiving against Mpangaja beyond reasonable doubt in this case and he shall be convicted for receiving under sectiOn 311(1) of the Penal Code," It seems to me that at this stage the trial magistrate got confused because havin clearly decided that in the c'trcunistances of "that case, the doctrine of recent possession could not be successfully invoked to convict the appellant of cattle theft, how then could he convict him of receiving, when the only evidence befor him connecting the appellant with the alleged offences was the fact that he was see'n in possession with the said animals? There is no Other evidence whatsoever linking the accused with the alleged offences, If •he was clear in his mind then it was automa- tically imperative for him also to hold that the possessidn of the animals, for which as I have indicated above the appellant had Offered some reasonable explanation, could not he invoked successfully to' convict him of any other offence let alone those of receiving. It is because of this appQrent confusion displayed by the trial magistrate that forced me to hold a view that the complex factual and legal issues in that case appeared to have been above his level. The learned state Attorney painstakingl,yp.ointeotto this court and I quote:- "1'he. identification was vital point to prove that the cattle found with the appellant were the complainants . . When both the prosecution and defence gave identical description L of the animals it was not clear who was right and who was wrong. There were twelve witnesses for the 'defence and and 15 ' witnesses for th2 prosecution. Almost all of them identified the same cattle with the same descriptions. n the magistrate merely decided to.bèlieve the prosecution demenour. of witnesses withoit giving reasons. In my opinion was noteasy' to know what type.of. dernonour ho relied. on. st have been doubtful, as' to whom to believe. If this be the then, I think it was a ae in which the doubt should have been d in favour of the appellant" 0 . ' . - 3 - On my part I could not, after deep consideration of the case as a whole, over-exaggerate my concurrence with the learned State Attorney in his openly expressed view 0 In the 2 udgment of the learned District Maistrate he seems to have entertained an idea that before hn bought a cow from somebody the appellant had a duty to know the name of that person or else the purchase of the cow would be questionable and according to him that would operate derisively against the appellant when charged in connection with that cow. He seems to have placed a heavy burden of proff on the appellant when he said at page 6 "It is curious that the accused bought a cow from a person whose name he does not know0 It is also something for this court to consider seriously the defence that the person from whom accused bought this cow is dead"0 On the burden of proof for cases of this nature suffice it to say that on being found in possesion of property believed to have been stolen or received knowing it to have been stolen, all what such a person is required by law to do in order to absolve himself from conviction is to give an explanntQn on the balance of probabilities, which could raise a doubt in the prosecution case0 Once that is done no heavier burden of proof is required from the accused person and he must accordingly bc nt' to an acquittal especially so, as in the instant case, where there is no other independent cvidenc' lrL:cing the accused person with the alleged offence(s)0 This is well-settled law as per numerous decisions of this court0 On the issiu of Ci -edibility of withesses and description Of animals n qie5ior tIe trial magistrate had this to say at page 9 . : "I must observe and point out that the decision of this case depends very much on credibilit - ' and demanoUr of witnesses0 I say so becausL both the proecutionwithcssos and de.ence witnesses have properly described anc.i idntirie .i the cows thu subject of this charge and some of which cows are exhibits in this case0 All the witnesses in this case had the cpportunity of studying the cows before they came to give eviden' In court-) The tows had first been seized ind were at police station where all these witnesses went and saW those cows before they came to testify in court0 Hence the point of description and identification on those cows cannot be relied upon as the criterion of deciding this case". . Having said that much he went on to say: "on credIbility, and demeanour I have believed and I an' satisfied irL Lh cctioi i coId the truth to the court in. respect of the charges against 1st accused Mpangaja". Like the learned State Attorney, I fail to trace any reasons in that judrnent, what made the trial magistrate act only on demeanour and credibility against the appellant in the face of Other aspects of the evidence which seCm, as I have indicated above to be in favor of the appellant0 The learned State Attorney fnal1v expressed his decline to support those convictions, and not surprisingly, with valid justification, when one views the irrgularities and incons.tstences glaringly depicted in the judgment of the trial magistrate0 I would feel, equelly, if not more, reluctant, to support such a line of reasoning and the resultant and obvious faulty convictions. Thus I am constrained in law to find that there was ample doubt in that case, which in. accordance with one Of the canon principles in conduct- ing criminal trials, ought to have been resolved in favour of the appellant0 V. - 4 .- Consequently, I quash convictions on all the seven counts, set - aside the sentences imposed thereon, and finally order that the appellant be immediately made to resume his liberty unless otherwise lawfully detained. As regards the animals which iad been tenderec as exhibits the same shall be vested to their p'oveii owners Delivered in open coi.rt at Dodoma this 30th dy of April 1975. E. A. Mwesjumo AG0 JUDGE For Republic: D. Lyimo, State kttorney. ... Foç_appellant: Absont 'r u: • nned, - _-__ . .- .. 4 --•...-: .: :,-. •-. .. --