19730502 TZHC Dodoma

- --<a. - -- IN THE RIG-Il COURT OF TAUZ.!NIA AT DODOMA APPELLATE JURI DICTION RIG-H COURT CRIMINAL APPEAL NO. 245 OF 1972 ORIG-INAL CRIMINAL CASE NO. 4 OF 1972 OF THL DISTRIUT COURT OF KONDOA DISNIIICT AT KONDOA Before S. H, Ilsele, Esq. ..... •• •••• ..... .District Magistrate SAG-IDU G-IDOBOKO ...................... ......... Appellant (Original Accused) versus - T HE REPUTBLIC . . . . . . . . . .......... . . . . a a •...•••• Respondent (Original Prosecutor) Qge: Cattle theft c/ss 268 and 265 of the Penal Code. ThI JUDG-EMENT IOTIKIMA AG .J4 Although he was convicted for stealing cattle, there was no ev±dence on which to call upon thë appellant to answer th case. For, all that was proved against him was that on 2/12/71 he was found in possession of one of the seven heads of cattle stolen on 7/4/69, almost three years previously. The seven heads Of cattle by any stretch of imaginatiOhësaid to have been recently stolen when one of them was < recoveredtwo years and eight months later. The appellant's possession of this cow would only be prima facie evidence if the theft was regarded as recent. In his judgement the convicting magistrate never so much as referred to the doctrine of recent possession, but ,PIP X that must have formd the basis for conviction. Fortunately for the appellant ? - It is not the law that proof of recently stolen articles will necescarily or in every case justify an inference of guilt (JAG-AT SING-H V. R. 2u EACA 209) u And in fact the cow with which the appellant was found could not be said to have been stolen recently 0 It was stolen over thirty months prior to his being found in possession of it. It is a notorious fact, jud,icially not iceable, that for cattle—herders like the appellant, a cow is an easily disposable possession. Indeed in rural areas where the cash economy has not quite penetrated, the cow is still a medium of exchange'. One pays a cow for say, a bag of rice or #ive bags of maize'. Two years has been held to be too long in the case of a cow in NA]TDWI 1 ,10T1AG-ACHI V.R. 1969 HOD 224. How could thirty two months be recert, then?. Indeed the appellant, although legally under no obligation to explain because no prima facie caso was made against him, said he was given tha cow in exchane. The person he named was not called because the court felt Uthat he would a<ree to have exctanged this cow with the accused for a bullU, In other words, the court felt that the named person would confirm the appellant's explanation. -...../2 - -2- Such belief in the court's mind entitled the appellant to an acquittal even supposing that the co he was found in possession was recently stolen. The appellant's conviction, is on the face of it bad because there was no evidence on which to base it. It cannot therefore be allowed to stand. Accordingly it i quashed and the sentence thereof set aside. The appéllent is to be released forth'rith unless th?re is lawful cause to continue holding him. I L.: DODOMA. I"I H. A. KiIKIMA 2nd May, 1 973. Ag. Judge. /Mam 7 I I 1 I !