19740206 TZHC Dodoma

IN THE HIGH COURT OF T4NZiNIA ' •I i. AT IJODOMA #c M4 APPELLATE JURISDICTION 0 HIGH COURT CRIMINAL APPEAL NO.193 OF 1973 ORIGINAL CRIMINAL CASE NO.484 OF 1972 OF THE DISTRICT COURT OF DODOMA DIS.TRICT AT DODOMA Before C.U.S. Mwailunga 00 ... 000 . 0000000 0 00• ...Resident Magistrate NUDESENBEYA......................... 0 00 0 0 0 0 0 .Appellant (Original Accused). versus THE REPUBLIC0 0000 000 0000 00 0 0 00 0 0 000 00 00 00 0 000 0 0Respondent 00000 (Original Prosecutor) Charge:. Cattle theft c/s 265 and 268 of the Penal Code Cap..16 J U D G N E N T '1 MNZAVAS J. The appellant was (with another man who has not appealed) convicted of cattle theft c/ss 268 and 265 of the Penal Code and • sentenced to 5 years imprisonment. He has now appeled to this court against both the conviction and sentence. On the night of 5/8/72 one Jeremiah (PWl) had his goat stolen from his boma. He raised an alarm and neighbours responded. A search started following foot—prints seen outside complainant's hut0 The foot—prints led them to a house of one, Gode(PW2). There they found the appellant with two other men in possession of meat in a tin 0 On being interrogated Gode told the searching party that • the appellant had brought a goat to his house on the same night and slaughtered it 0 All three people were arrested and eventually charged • with cattle—theft. The trial magistrate found the appellant and the man who has not appealed guilty of the offence as charged but acquitted the third man. There was, I agree with the Republic's submission, sufficient evidence poihting to the guilt of the appellant and his friend 0 When they were interrogated by Gode (PW2) about the goat, the person who has not appealed replied that the goat was given to him by his father. The appellant however gave a different story. He told Gode that they had bought the goat. When Gode continued with his interrogation the appellant told him not to pester him with questions and that he should mind his own business. The appellant is apparently Gode"s brother. There was the evidnce of Saidi Miraji (PW3), a ward xecutive officer. His testimony was to the effect that the accuseds admitted stealing complainant 1 s goat. Indeed the appellant went as far as showing the ward executive officer and other villagers where they had thrown the goatts skin and intestines.. . Unfortunately the skin and intestines were not traced. Instead they found hyena's hoof- marks in the vicinity. In his memorundum of appeal the appellant alleges that he only admitted stealing the goat after he had been beaten by the executive officer who forced him to admit stealing the goat. It was indeed because of this serious allegation that the ppeal was admitted for scrutiny. The learned trial magistrate appears not to have believed appellant's defence that he was subjected to violence when he admitted stealing the goat. It is'possib.le that the appellant was subjected to violence by the ward executive officer, but it is rather Odd that the appellant did not 'cross-examine h on this point. And, what is more, 4- the othr accus person did rot.in his defence say that they were subjected to vi ence. The appellant's defence in the lower court and his memorun m of appeal to this court that he was beaten by the executive of fic before he made the confession is clearly an after- thought. And, I may mention, I see no reason why (and the appellant suggested :inone his brother Gode (PW2) should have decided to tell "lies" against • The con1usion of the learned resident magistrate is • fully supported by the evidence. The sentence of 5 years imprisonment is the statutory minimum for this offence. Ir the event this appeal fails in its entirety. DODOMA N. • MNZAVA 6/2/74 JUDGE Appellant absen and unrepresented. Charnbakare for e Republic.