19840927 TZHC Dar es Salaam2

nr THE EI GH COURT OF T/,l'L·.'.;,\NIL LT DJ:.R ES SJ;]iU:M API':~LIJi. TJj Jlf.HI SDI CTI ON (l'er es Salaam Registry) EI GH COUR'l' CimU:NLL iiJ?})E.f,L NO. 47/84 (CF, CRIVIDJiJ.L 1,ppj~LL NOS.48, 49 & 50/84) ORIGINLL CHIITilL'iL CL3E N0,308 OF 1983 OF THE DISTRICT COURT OP nonoGORO DISTRICT AT :MOROGORO BEFORE A. n. tLJWNTO nS\!, RESIDENT MAGISTRATE. NYli.KUNGU MSI GI TI •••• , •••••••••••••••••••••••• APPELLANT (Original Accused) versus THE UNITED REPURLIC, •••••••••••••••••••••••• RESPONDENT (Original Pr~secutor) tvU.INA, J. This is an appeal by lffi,KUNGU r:;:sIGITI against his conviction for cattle theft and the sentence of six years imprisonment. Three other persons were jointly convicted with the appellant for the same offence but the appellant alone is appealing. Briefly, the prosecution evidence was as follows. On 30th June, 1983 three head of cattle belonging to Mkata Ranch were stolen while grazing, The herdsman 9 PU.4 Athanasio said that he had seen four Masai young men at the grazing ground before the cattle were stolen bu·~ he did not identify them, It was only later when the cattle were counted that it was found out that three head of cattle were missing in the herd. 1. search vms mounted to trace the cattle. PW.3 Samwel testified to the effect that on 1st July, 1983 he was approached by four Masai young men whom he identified as the appellant and the three accused who have not a,pealed and they had three head of cattle which they ·wanted to sell. }:W.3 Samw~~ .a~eed to slaughter them sell .,. . . the meat and give the proceeds to the. appellant and his co-accused~. Samwel was to deduct his commission fi>:om_the proceeds. The cattle -were slaughtered on 2nd July, 1983. ~lhiJ.e. Samwel was selling the· meat, the appellant and his co~accused remai~d at Sa,ntwel 1 s house. :-~ The search"party found Samwel selli:og the meat and he mentioned the appellant and the other persons Vll10 were accordingly arrested at Samwel's house.· PW.2 Skeita told the court that Samwel had mentioned the four pe:::•sons who sent the cattle for sale, the appellant ·.-Jas found at .Samwel 1 s house with three other T'fasai young men- and all of them said that the cattle which were slaugl1tered belonged to them. They - 2 - ,.., even showed where the skins were hidden. PW,i Ahmed Omari Ki tumbo, the Manager of the M:lrata I~nch was called and he duly identified the skins as those of the stolen cattle. 11he appellant was duly arrested. The appellant's defence was tl-ia t he had been hired. to drive the cattle to Mzumbe and the nowner 11 agreed to pay him Shs.· 200/= for the job. He drove theoattle which we:;_ne slaughtered and he was arrested at the house of the businef:.lsman. As there was no dispute that the tbxee head of cattle which PW,3 Samwel had slaughtered belonged to the I':Ticata Ranch, the only matter which the trial court had to decide was va1ether the circumstantial evidence irresistibly pointed to the appellant I s guilt. _In the memorandum of Appeal the appellant raises the defence of alibi saying that he was in another village. But as Miss ::_)hilip, the learned State Attorney, submitted, if the appellant had been elsewhere when the offence was commj_tted, he would have raised that defence of alibi dui-i.ng the trial. The appellant has also claimed he wished to call his father as his witness and tba t the trial Magistrate refused to summon the witness. That cannot be true at all. The record of the trial court ,shows clearly tba t the appellant, who was the second accused at the trial, said that he did not wish to o.11 an~' witness,. In the memorandum of appeal, the appellant also claims that PW.3 Samwel who was found selling the meat of the stolen cattle should have been held responsible for the theft of those cattle. The learned trial magistrate properly pointed out that Samwel should have realized that the Qlttle he had slaughtered belonged to the National Ranching Company because of the clear brand marks on the cattle. With respect, I agree. Samwel was a IJerson with an interest of his own to serve and his evidence requtred corroboration. Such cor:,•oboration can be found in the eridence of PW.4 Athanasio who had seen four Masai young men at the scene of the theft just before the theft ~s committed. There was no dispute that the appellant and his three co-accused were four rnasai young men who sent the cattle to PW.3.• Samwel. The trial cou:ct found them to be hardly twenty years old. They were all arrested in Samwel's house two days after the theft. There is also the evidence of PW.2 Skeita who said that the appellant and the other accuGed told him that the tbxee cattle belonged to them and they proceeded to show where they had put the skins of the slaughtered oattl~. That corro?orates the evidence given by PW.3 Samwel. The appellant denied that he gave the cattle to Samwel only after the three head of ~attle were identified by PW.l f1hmed Ki tumbo. There is no doubt that the app~llant ..... ./3. sent the cattle to PW.3 Samwel, The trial court propc:dy convicted the appellant of cattle theft, The sentence~ vvhich is only one year above the prescribed minimum, is not manifestly excessive as to warrant interferance by this court. This appeal is dismissed in its entirety. W. J. MLilM -- JUJJGE DJ.R ES SLLAliM 27th September, 1984. Miss Philip, State Attorney, for the Respondent Appellant absent.