NA TZHC Mwanza2

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (coRA MUSTAFA, J.A., QMAR, J.A.And MAPIGA1IO,Ag._J.A.) CRIMINAL APPEAL NO. 18 OF 187 WAMBURA s/o IT1BE @ ROBI s/o WAMBURA ITE1BE . . APPELLAT VERSUS (Appeal from the conviction of the High Court of Tanzania at Musoma) (Katiti, J.) dated the 8th day of July, 1986 in Economic Crimes Case No.19 Of 1985 JUDGNEJNT OF THE COURT MUST!FA,J.A.: The appellant was convicd of cattle theft in the Economic Crimes Court. He was sentenced t0 10 years imprisonment. P.W.2 was herding his cattle. When P.W.2 was temporarily away chasing his goats, the herd of cattle was driven away by thieves. When P,W.2 returned and found his cattle gone, he stood on an anthill and he said he could see two persons at a distance driving away the cattle. P.W.2 raised an alarm and gave chase. P..W.3 was among those who answered the alarm and followed the thieves. F.W.2 alleged that one of the thieves was w.atg a green army shirt. F.W.2 and F.W.3 gave chase and on the way recovered 10 heads of cattle. At that stage P.W.2 went off to the nearest village t0 make a report. F.W.3 continued with the chase. P.W.3 arrived .at a bush near the Kitache River and there recovered several more head of cattle. In the bush F.W.3 saw two persons, both armed with pangas. One of them was the appellant, who,alleged P.W.3, was wearing a green army shirt. P.W.3 and his companions beat up the two persons one of whom died from their injuries inflicted. . . . . . -2- be The deceased turned out tohe appellant's brother. The appellant tried to escape but was caught and was handed over to the village Chairman P.W.4. F.W.5, a Police Officer, to whom a report was subsequently made, saw the appellant on a stretcher at the Kiongera dispensary. The appellant was injured, and P.W.5 stated that the appellant's wound was bound with a green army shirt. The appellant alleged that P.W.3 and his group arrived at the bush near the Kitachi river when the appellant and his deceased brother were cutting trees and sisal poles for a hut. His deceased brother was 12 years old. P.W.3 and his group were suspiciou9 and his younger brother was speared 'by one of the group. The appellant was beaten up. The appellant alleged that at one stage he was released and as he was goirg away he was caught up and re—arrested and beaten. At about that time the village Chairman F.W.4 came and the appellant lost tonsiousne&e. F.W.4 the village Chairman testified. He stated that he received a report from P.W.2 of cattle theft. He assembled some villagers near the Kitachi river. He saw the appellant walking from the direction of Kurutani village going towards Kikomesi villaggr. The appellant was empty handed. He saw the villagers chasing and arresting the appellant. When he went up to the appellant, he found the appellant wounded and badly beaten up. At the trial, the green army shirt was 0t produced as an exhibit. The appellant was identified as one of the cattle thieves by virtue of the green army shirt he was allegedly wearing, • and by nothing else. The appellant was not found with any stolen cattle. The green army shirt was a necessar, ' exhibit, and it was not produced. The appellant was found at a bush near the Kitachi River. He gave an explanation of his presence there. He said he was cutting sisal poles for a hut and that would account for him and his brother having..n pangas. No evidence was forthcoming as to whether the story given by the appellant could have been true. The only reference t0 this matter was by P.W.3 who stated .. ./3. - 3-. notes were picked up from room N0. 2 and were checked against the numbers of the currency notes that were written cn a piece of paper. Witnesses who were present in the dini*g room like F.W.l and 9, P.W.4 and 5 testified t0 either seeing the money being thrown or seeing Mr. Mbaku being surrounded and put under arrest. The respondent Mr. Mbaku made an unsworn sbatement. He stated that he was inves1igating a case concerning F.W.2 William Lugola whose case was withdrawn by the Distriet Court at the request of the prosecution. Mr. Mbaku admitted replying to a letter of F.W.2 on 1.3.82 to the effect that this case was still under investigation. He said he was not approached again by P.W.2. But after the withdrawal of this case of P.W.2, he Mr. Mbaku heard that one Anthony Joseph, P.W.2 Lugola and Mr. IVflc.y were preparing f a trap to catch him receiving a bribe. Again between July and August, 1980 he got information from Salum Tewa D.W.2 that some people wanted to give him money so that he could trap Mr. Mbaku. On the 20th November, 1980 he reported for duty at the police station about 7.30 aomf and at 7.45 a.m. he went to town to ,arrest people and at the market place he was stopped byone Abel who told him that his relative was waiting for him in room No. 8 Buluba Guest House and that this information was whom conveyed t0 bel by a police officer he met at Baluba Guest House that morning. Mr. Nbaku quidcly went there, reached the door of room 8 and knocked and the door was opened by F.W.2. He knew then that he was cheated. He decided t0 leave and when he wa at the canteen and three paces to rection roôm r.W.6 Nest o r Mssaba emerged from room 1o. 2 and stopped him and told him that he had received a bribe and had thrown the money in room N0 . 2. F.V.8 then went infront of him and F.W.3 went from behind and another man appeared and they all surrounded him. Mr. Mbaku called four witnesses. D.W.l Kabuzi Mwikola, Officer incharge C.I.D. 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