magreth d/o Salum vs Limi s/o Ng'ombe and 2 Others ((PC) Criminal Appeal No. 11 of 1999) [2000] TZHC 447 (12 May 2000)

IN THE HIGH C01JR'r OF TAI-iZANIA AT MBIG""fA (PC) CRH.UN.AL APP:81-i.L NO. 11 OF 1999 (it'rorn Criminal Appeal No. 18 of 1999 of the District. Court of Chunya District at Chunya Befere: N.M. Kaserero - Senior 1/Magistrate) " MAGRt:iH D/0 SALUM o:,o·..).;,oc_ouei,:oc,oo APPELLANT Versus 1 o LIMI S/0 l\jG 9 Oi-IBE ) 2o BAHATI S/0 BENEDICTO?••••••• REBPONDENTS ' 3o SENGEP,EMA S/0 MASANJA) JUDGMh'NT The Mkwajuni primary court convicted the three respondents, Limi r$_/• Ng amt--,. Bahati s/o Benedicto and 3engerema s/o Masanja, of Cattle theft, contrary to .-. sections 265 and 268 of the Penal Code, and sentenced each of them to the statutory Minimum imprisonment term of five years. __ The respondents felt aggrieved and preferred an appeal to the-district court of Chunya • . ·, .. -- 'I1he district court allowed the arrpeal, quashed the convicticin- 1 s~t aside the sentence, and ordered the imrr.ediate release of the respondents froin prison. 'I'he appellant, Hagreth d/o Salum, who was the complainant, felt agg;rieved, hence

• " this appeal in which she told this court she abided by her memorandum of appeal in the absence of the respondents who ha.d taken to unl\l:1ewn destinations after their acquittal. The appellant and her husband, Seliya Njonge, had heads of cattle whose herdsman was the second respondent, Bahati' Benedicto. In the evening o~ 3•9o99 ., the appellant detected that 7 cattle were missing. Her l'lusband was away. 'l'he '. missing heads of cattle were five cows, one bull and one ox. She ask_ed the second respondent where the 'seVen animals .i,vere. .He replied that they- got lost in the pastures two days back • .she wanted to know.why he had not reported the ·.:<.--.·-· less to her. He repliect·that-he forgot·to-report~ She became suspicious and reported him to their Acting Tete Village &ecutive Officer (VEO), Moses Goliati C O O O O G D O O O /2

2 - (SM2). SM2 then told her that at i.5.00 A',:; that day morning the first and second respondents had-gone to his house for a permit to take '7 heads of cattle to Mbeya for sale. They told him they were sent by the father of the first respondent known by SH2 as having cattle. SI;i2 asked them for a letter from either their area chairman or veterinary officiaL "t-. 'l'hat was the standard procedure. '.I. 1 hey did not have such a letter. 80 BJ'!2 refused them the permit and asked them to go f•r the letter. l'hey left but never returned to the house of SM2. 'rhey had told 1 SM2 that the sev_en heads of cattle were with the third respondent. 'l'hat same day (3.,9.99) Deus Nanclula (81'13) and five other persons were on the way from Nbeya with heads of cattl,::; they had bought. 'l'hey came across the first •fu"1.d third respondents who were driving 7 heads of cattle along to Mbeya 8 , whese composition was 5 cows 1 1 bu:;_1 and 1 .ox., $Mj asked them whether the , . • • I • animals were foi sale. 'l'hey replied in the affirmative. 'l 1 hen SM3 noted that the animals bore identification marks of, the cattle of Siya 6jonge, the husband of the appellant. He knew thope marks. He asked where, Seliya was. 'l'hey replied he was corning behind ,them. They _added a permit had dayed hin1. ,SM3 and the others had no cuse for suspecting the first and third respondents, · se they proceeded with their journey. 'l'he respondents denied complicity in the theft in their defence at the trial. The first andcthircl. respondents made r;en.e:ral denials. 'l'hey denied to ·have met SM3 'But they had no grudges with hir:n and co:uld not suggest reasons for him to speak lies against' them. 'l'he second respondent claimed the cattle were. lost in the pastures on 2.9.99. 'l'he first and second respondents denied to have gone to the VEO (Sl'112) fr permit. But they were on good terms with him .•·. and could not suggest any reasons for him to speak lies against them. I must say at the outset that this appeal is abundant in merit. 'l'he judgment of the district ·court was unsatisfactory. In allowing thE; q1.ppeal the district court faulted the trial court for having based the conv.iction entirely on insufficient circumstantictl evidence. But that was not the comprehesive view oooooc.ooo /3

3 of the totality of the evidence on record. The trial court rightly found sufficient circumstantial ax1d direct evidence in support of the conviction. :[if.st, circudistantial evidence to be conclusive must satisfy two prerequisites: I it must not only be consistent with the guilt of the accused, but must equally be inconsistent with the guilt ef anyone else. As fully demonstrated, the circumstantial evidence here satisfied both prerequisites and pointed irresistably 1 to only one conclusion, the guilt of the respondentso Secnd, the respondents were identified with the cattle of the appellant stolen a while back for which they gave no explanation. The unexplained possession of stolen property shortly after the theft raises in law a presumption. that the person so found in possession stole the propertyo The presumption varies in strength according to the proximity in time of the possession to the theft-- SEE '!3.:.'l!•_'L.gg sL.o-1(.i!::!!2 ( 1937) 4 EACA 25. 'l'his is called the doctrine of recent possessiono ln the circumstances of this case, I am satisfied th&t the t.rial court had properly invoked the doctrine and that the respondents were tb.e culprits. I accordingly allow the appeal, quash the judgment of the district court, set aside the acquittal order, and hereby restore the judgment and sentence of the primary court. .Jarrants of Arrest are to issue age.inst t1e respondents who are to be remanded to prison to continue serving their f,entence • . - ... /'. ···•, , :-----,--,-.·:~ B.P. MOSRI JUDGE. AT NBEYA" 12 May 2000. For Appe11ant: Present o For Respondents; All absent.