19730808 TZHC Mwanza

;"W.. -1 IN THE HIGH COURT QP TANZANIA AT jrrTZA APP1LATE JURISDICTION (Mwanza Registry) HIGH COURT CRILUNAI APPUAI NO. 411 OP 1972. ONIflW CRILaNAL CASE NO. 583 OP 1972 OP THE DISTRICT COURT OF MUSOMA DISTRICT AT MUSOMA - BEFORE.: E.'i. KATITI USQ., SIOR RESIDENT MAGISTRATE. 'NIIJIAI'/I NYAKI1WA . .. . .........- . . ............... •... . .. AP1EL.ANT (Original Accused) Versus: TH:i,' REPUBLIC ........................ . . ........... RESPONDENT (Original Prosecutor) CHARGE:- Cattle tieft c/s 68 & 265 of the Penal Code Cap. 16 Vol.1' of the Laws.-.. jUDGMENT.' JONATHAN, J. .. The appellant was convicted of cattle theft c/ss..268 and 265 of the Penal Code s and sentenced to 3 years' imprisonnent. As the trial nagistrate.noted,tbis was an.o±'fence under the Mininurn Septences Act, 1972t the shortest sentence for which is 5 yearst imprisonnent, ,which he should have inposed. Apparently due toan oversight, he also failed to m?ice. an order for coupensation in conpilance with the provisions of Sect._. 7 of the Act, for out of the five head of cattle stolen only one was, recovered. At least to rnyself the appeal is one of con@derable difficulty, especially because there are a nunber of nissing links in the chain of the evidence, itself, of renarkable brevity. The undisputed facts were that on. the 7th August, 1971, apparently during the night, 5 head of cattle belonging to Uganda Moat Packers Ltd. were stolen and that, on the night of 13th Septenber, 1971 shortly a±'ter mid-night one cow was found in the herd of the appellant, which was , supposedly one of the stolen cattle, in circunstances, however, v4iich.are not altogether clear. .. . . . These circumstances are to be found only in the evidence of P.Vi.2 9 the 10-house leader.of the appellantts cell. According to.4n he heard an al5u: at about 1.00 a.r.i. and in response he. proceeded to the house of the appellant where he found many villagers having gathered. , There is npdipation.in ; his evidence as.to who raised.the, alam an4.tbe,reason for it However, when he gpt to the appellant's house there.heeard an alJ.egatiQi that some of the cattle in the herd of the couplainant were not his.. No particulars were given of this accusatiop. The witness clained that the appellant was present as were two boys one of. whom was his son and that when he asked the appellant who the owner was of cow he saw with narks of identification used by Uganda Meat Packers Ltd but he would not say what they were, Again, it is not that clear what drew his attention to that particular animal for it does not appear that the company had had any of its cattle stolen. They then se±zed the cow and took it to the primary court of the area. It is presunably there that P.VT.l, an employee of the company identified a cow which, he said, was one of the cattle stolen on the material night. However, it does not appear anywhere in the evidence as. recorded that the cow found in the appellant's herd is the one.he identified at the primary court as being one of the stolen animals. Indeed, such animal as he night have identified was not produced for a view by the •court in order to cifim if the cow found ., ...' in the .aPpelliv' . q 1erd vas, in fact, one of the stolen animals. In his unsworn statement in defence the appellant said the cow had got mixed up in his owit 'herd as 'his sort was graziig it and that that cow had been in the herd of some I\Tandi.tribesr.len, Vlhen he saw it in his herd, he said, he reported to the Police. He denied sstealing it or havit' -....... anything to do with the theft. It was also his stand that he was not present when P.T.2 and the villagers fbuid ..it in his herd. The trial magistrate in his judguent cestigated the conduct of the appellant as being iicoupatible with his 'Innocence Such coiid'uct is to be found firstly in the appellant! s alleged disdppeaiane ai' being confronted by P.7.20 This undoubtedly told heaviir"agaiñst the appellant. It is questionable, however, if'rnbh relian"couldhave been placed on it especially in view of the appellant's deni al' that he was present and having regard to 'the many unsatisfactory features in the prosecution Case. It may be noted in this connection that followinbe discovery of the cow the witness was arrested apparently on suspicion of for its theft, while some explanation was called for1 the prosecution failure to call supporting evidence from any of the villagers who either raised or answered the alarm together with P.h.2. The further conduct as noted by the magistrate' was that the appellant falsely repbrted to the police that P.Y.2 had a hand in the theft. This made unacceptable the appellant's claim that the cow had been in the possession of some Nandi tribesmen. a satisfied this wasgrave misdireetii. There was absolutely no evidence that the àpellant ever reported against P.VJ.2 and it was a mere suspicion on the part of this witness which was shared by the court that, the arrest of F.W.2 was made after the appellant had reported adversely of him. Certainly it did not follow that because P.V.2 was arrested only the appellant could have supplied the infomation leading to such arrest. With 'espect to th senior State Attorney bo argued in support of the conviction, the evidence, including the failure to lead evidene of identification by P.W.l, was so unsatisfactory that it would be uisafe to allv the convictii to stand. It is accordingly quashed and the sentence set aside' The appellant should be set at liberty if there is . no other lawful ground for continuing to detain him. (p. M.' JONATHAN) ' "JUDGE •1 - Delivered.in open cou.t this 8th day of August, 1973 in the presence of Mr. Butanbala - State Attorney for the Republic. (p. M. JOJTATHAN) JUDcE. 8/8/1973.