19800107 TZHC Dodoma

IN THE HIGH COURT OF T..ANZANIA. AT DODOMA APLLATE JURISDICTION D I CRIMINAL APPEAL No.196 PY 1978 (Original Criminal Case No.163f 1978•.of the Ditrict Court of Manyoni, Before P.Nj.Msha iEsq.; S.Magistrate) NDACHI NANYUTWA . .. . . . .., . Appellant (Oinal Accused) versus .THREPUBLIC. •r• •• •.'. . • Respondent. (Original Prosecutor) I • ,. . •CHARE: Unlawful possession of Government trophy c/s.67 (2)(a) of the Wi1dlif0Ccnervation Act 12/74. \ JUDGEMENT S LUGNGIRA, J. This appeal is.. againt conviction and sentence on a charge of unlawful pession of Government trophy punishable under s.67(2)(a) of the WildlifeConse.rvation Act, 1974. The appellant wa sentenced to three years' imprisonment following conviction. T1iere was evidence from three witnesses, Pi1s.1 2 an6 4 of how the trophy a leopard skin •- was recoiered from a 'hndag in the appellant's physical possession. He had earlier on tried to sell the skinto.P.W,1 who ed-him into being arrested. But the appellant and his one witness claimed that the skin was foribly planted on the former by P1J.1. I think the prosecution evidence. , was sufficient and credible enoughyto justify the finding that the appellant was in possession of the skin. PW.2, the village chairman, and W.4, the 10—cell leader, were independent witnesses. They had no reason to fabricate a lie against an innocent person. As did the trial magistrate, I accept their evidence and reject the defence. Mid as the appellant endeavoured to. deny rather than justify the possession of the skin itfc.11.ws that the possession ruot have been t1u1, At the hearing of the appeal the appellant, who. appeared in person, further claimed that the trial magistrate ropremanded and refused to hear more of the defence witnesses, T is regrettably, is not borne out by. tho record. It transpies, S . -2- on the contrary that after two adjournrnt in an un- successful bi to trace the witness or witnesses the appellant oqusted the ôourt "to proceed with the case and do away w iththe witnos," I have no reason to boiio that the èord.is tolling a lie. I think that the present allogatin 'Is' an aftthoiight. In the end, thercoro*,,J.fin\that the conviction was sound and proper and I uill nointorfe'e Srnothingould be, said about theononce The judge who admitt.ed.the aperil iearked that perhaps" tbre yocrs' imprisonnientwasnotdeservod. Under where the \valuo of the trophy does not / excobd 5'000/= the offender is liable to imprisonment' \ for a term of not loss, than to years but not exceeding seven years, or to a fine of not loss than 20 3,0001= but ' not exceeding I00,000/=. In this case the c1rge shoot allogod that thc;skin was 'valued at 5,)OO/=.Prima f ac-ie, therefore, it would appcar tat the sentonco was not unreason-able. But on a croful considoiation .f the facts I have bon inclined to the view cf the admitting judge. •Thorc are tIeofacor which irne me so. First of all the appellant was. a first 'offendcr. Secondly; thcc was no evidence of thovalue of thc sin but the alogat ion in thc chc'rge shoot. For rJl we Imow it might havc been worth much less than 5,bOO/, if nything. I thixik that whore, as in this caso, the ialue of the trophy is so material to the proper d?torrinaton of the sentence, endeavours should always be made to establish, such value in ovidàncQ. And where such cvidnce is not forthcoming the accused should benefit from 'the doubt. Finally, and more seriously, the trial magist*ttc misdirectod, himself in the course of sentencing by remaking that the appellant ght have illegally huntoC. the leopard and obtained the skin." That, with respect, woftt beyond the scope of the offence actua11y charged end suggdsted that'the appellant might have committed two offonces 0 The remark was thoroforo prejudicial. It may well be that the magistrate would not have imposed the sentence he did had he not misdirected himself so. It follows-in my view that the r. circumstçiiccs of this 'CiSC: did not justify but negatived sentence ohor -haft the min1mm 0 r ( H -3- I accordingly reduce it to on of wo (2)ye& imprisonont0 3 On the wholo therefore, I d:miss the appeal save to the extent of the variatict. in the sentence. K.SLLUGLXING-2A JIJDCE DOIJ9NA "- 7j1/ 1 980 (