19800521 TZHC Mbeya

-9JUL 1980 Am r,I;rcrA ti .L APPELLATE JTiaI;JDICTION CRI1JNAL APPEAL NO. 10 OP 1980 (ORiGINAL CINAL CASE 1.-JO.467 OF 1979 OF TIE DISTRICT COTJIT OF IRINGA DISTRICT AT IRINGA) BEFORE W.1i.B. KáPAYJi JsqRESIDENT IIiGISThATE LKtCL' ANDRii'I NGOLOI • ; APPELLANT (Original Accused) Versus • RESPONDENT (Original Prosecutor) CHARGE Cattle theft c/s 268 and 265 of the Penal Code, JUDGEi' If TA]o:B.fI'E, J., — The appellants, Lfusa Nalolo and Laurence Andrew, were convicted of cattle theft and sentenced to 5 years irnprinment each. Dissatisfied with the decision they have appealed against both the conviction and sentence. Their appeals are consolidated. The two were convicted largely thn the testimony of P42, a person to whom the stolen cattle were alleged to hve been sold. PW2 identified the apellants as being the onec — including another who is at large — who had sold the cattle to him. P42's testimony was in part ,supported by the testiionyf4 who claimed to have witnessed the sale transaction. Documents were also tendered which Iu:?orted to show the sale transaction and the purpo±±ed owner of the cattle. The documents speak of 1st appellant, I'iva Kalolo, being the owner of the beasts and of him (Musa Kalolo) and one Daud Kalolo being the vendors. 2nd appellant (Lawrence) is referred to as a •ritness to the trans action — so is P44. The contents of the documents do not ciumipion the story of either P42 or 4 that 2nd aiuellant was either the owner or the vendor of the beasts. And apparently both P42 & 4 are literate people. For their signatures appear on the document of sale identifying P42 as the purchaser and 1"44 as a witness. . • .. /2 - 2 -' The other document identifying 1st a:'peflant as the owner of the beasts was also read by P12 & 4. I therefore fall to-see any reason-able basis for 1,12 & 4 holding 2nd apellant as one of the owners and/or vendors 1 1 of the beasts. The ].ower court found 2nd appellant an accessory after the fact. I cannot see how an accessory after the fact could be convicted as a principal of fonder. In any event there is little evidence on record upon which to conclude that 2nd appellant was an accessory after the fact. The judcnt of the loiier court did not discuss the role of 2nd appellant that indicated conclusively of him being an accessory after the fact. Second appellant may have acted &/or behaved foolishly or in a manner that cast suspicion as to his innocence yet in a criminal case mere suspicion howevr grave would not suffice to çound a conviction. For the above reasons I would allow the aieal of 2nd appellant quash the conviction and sot aside the sentencO. He is to be released forthwith from prison unless perhaps held for some other lawful order. As for the 1st appellant, Nizsn la1o1o 9 the evidence is overwhelming that it was he who claimed to own the cattle and produced the document th- t iiac ted that thl cattle sold )elon od to hii and then sied the document of sale as aveMor ofthe beast- s before rece±iIng the proceeds of saiC. I cannot see how In such a ituation 1st 'appellai may now rrednd to diassociate himself with these incriminating acts. The cattle in question hvinbeen'shoh'to be tolei.propert - '1tappellantwas clearly found in possession of the stolen proprtr only-six days after' the theft (-it ±0 on record that the chttlé were- stolen on5.9.79 ad offered for sale to PW2-on 11 0.75L Tho poribd:is- too: short t'o:máke:. him a mere gmilty 'receiver. He was' ul-idoubtedly. the actual thieo±.èe of the actual thieves. I would accodinly. dismids. his appeal againt conviction. The sentunce meted-out is the.mi.niisum predcribed-by law,c-. for such an offence. ' The appeal a'ainst sentence 'is also dismissed. At IrinGa this 21st day of l-iay 198b. T- J, rNAi3TE JIJDGE