19770810 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOlYIA APPELL&TE JURISDICTION HIGH COURT CRIJVIINAL APP:21\L No. 11 4 OF 1 977 ORIGINAL CRIMINAL CASE No. 497 OF 1976 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SING-IDA BEFORE: . I .H .IvI. lY1AGESSA, • · • • • • RESIDEi::T MAG IS TR.ATE RAJ.ABU NTANDU • • APPELLANT versus THE REPUBLIC . . . . . . RESPONDENT CHARGE: Cattle theft c/ss 265 & 268 of the Penai Code J U D_Q_)1 E N T CHIJ?ETA 2 J. - The appelL::,nt, Rajabu Ntandu alias Mtinangi Htandu, was jointly chargf;d wt th another ( who was acqui'L:t,Jd) of the offence of cattle theft c/ss 268 and 265 cif the PenD.l Code. He was convicted as charged and w~s sentenced to 5 years imp:cisonr:1ent under the I--1inimum Sentences Act, 1972. He now appeals. The prosecut ion 1 s eviclenc a was that some d.-:w in August, 1976, a heifer of the complainant was stolen from grazing grounds. Later the heifer was found in possession of the appellant. On interrogation, the appellMt so.id that the heifer had been brcut;ht there :by one l\fu.na 1Tkuncu alias Shaban Hu.ss.ein. The said Muna was then also arr<;.)s.ted, and he was the second accused at the trial. In his defl~nce the a~.)pellant said that the heifer in question was brought to his place by one Mjengi who was accompanied by the second accused. The said Njengi said th&t he wanted to exchange the heifer with a bull.. The said MjcD.gi. and the second accused then took the heifer to on8 Juma Ndui. In the presence of one Yona (Dw.3) the appelle.nt exchanged the heifer with a bull at Juma Ndui I s place. Later the said JU11.a Mj engi .-was arrested for theft of the animal. Subsequently th·::: a:;;:ipellant was also arrested. Th8 said Mj engi, however, escaped and he has not bc::i~n seen since tmn. The learned resident magistrate accepted th8 prosecution's evidence and rejscted the appellant's story. He then convict0d· th 0 appellant as charged and acqui·ttcd the second accused. With great res1-iect, I am not persuaded that tht:: c~se against .-the apJ) ellant was so strong as to justify the conviction. The prosecution 1 s evidence is silent on fue question as to the circumstances in which the heifer was found in the possession of the aHJ ellant. The t::; x_~ellant 1·s defence contain0d far more details than did the proseciton' :::; case. The appellant's defence was in fact SUl'l~Jort3d by one of· the people he named to have been present cluring the transaction. The learned magis-crate seems to have based· the convicticm on mere conjecture, 2.nd, which is,the more evil, on serious misdirections on tl'i_e burden of proof in criminal cases • • • •2 2 The learned resident· rnagis trate stated:- " I find that th,jre is enough cvidenc e tc r.,rove that 1st accused stole the cattle in ques1aon. For h-3 was found with it~ And -he lF.s named second accused and unknovm person to have brought the cattle. to hir;i. 2nd accused has denied this. The 1.st accused's defence cwnot be believed. For how can thG court believe that it is the unknown 11erson who brought the· ca·i~tle to the acc~~~ed's hone. And a~ain, how can the court belieV(J that it is .the 2nd accused who took the cattle. thr,re Vi.hen 2nd accused hiL1sclf is denying this. After all 1 w'. \O will be convicted of ca :;tle theft if (JVF;ry ~1erson found ·with stolen cattle will sta.te that th-J same was brov.gJri; ther~by unknovm person(s)." This passage clearly shows that the learned magistrate had shifted the burden of proof on to the ap1J ellant. It has rer.e atedly been held tb.at an accused i)erson does not have {' to satisfy· the court. that his story is tru.e. A court, therefore, does not have to bolieve the story o:f c=~n accused person. All that an accused. person nesd do to bto enti tlod to an acg_uittal is to give an explanation which raj_s r;.s reasonable doubt in th~ mind of the court. The above-quoted passage in tho learned m.2.c;istrate' s judgment further goes to j)erilously near su.ggcs~ing that any person fcund in possession of stolen goods 1;a necessarily the thief. That is not the law. A conviction bcised on the doctrine of rec,3nt possession ·can only· be justtfied where the circur.o.stanc0s of ths posser.::nion suggGst that such possession was unl;-;1.wful and the accused has failed to give a reasonable expl2natic11 of innocent possession. It is my conr:)idered view that had the leara,:~d resident magistrate addr~sf~ed his mind to those lega.l principles he would not have arrived at his decision to convict the appellant.· On these grounds, tlH:: convict ion, which incidentally the Republic did not SUi)})Ort, cannot safely be allowed ·i;o stand. It is accordingly qu cashed and the sentence iG her~:::,y Get - aside. The appellant must b0rol0ascd f·:--::i .custcdy foi't:Pwi.t_h unless otherwise le.wfully detained. · Delivered in open court at Dodona this 10th 1~.c:..y of August, 1977. l//:1 i, (, B. D~CHIPTE1A JUDGE.