Elinafika s/o Ally vs Republic (PC. High Court Criminal App No 5 of 1984) [1991] TZHC 2807 (3 July 1991)

UA ~~ C~,, IN TIE-13 HIGH COURT OP TANZANIA AT ARUS114. (pc) hIGH COURT CRIMINAL APP .N0 .5 OP 1984 ORIGINAL SMIE DLTRICT COURT CH.APP.NO.3/83 ORIGINATING B ROM KISI'Jjil'I PR. COURT CR.C.NO.22/83 ELIIIAPIK.A S/o ALLY • . . . . . . . . . . . , . . . , . . . . . . . , . . . • JIPPELLANT ViRSUS PItRIPUDLIC •.. . . . . ,... . . •• • • • • • .. f . . . -- V_ -r - V------ ' V. V JtJDGN]N •. V . - V. bR V V V This is a second appeal from Same District Court Oriminal Appeal No. 3 of 1983, ox'iginállr Kisiwani Primary Court Criminal Case No. 22 of 1983. In the said primary. court the accused V persOflS .naiio1y Accused No. 1 Elinafika Ally and Accused No.2 JpJius Athuman were jointly chared with cattle theft c/s 265 and 268 of the penal coe for allegedly stalin 12 head of battle valued at sha. 35,0001= fror one Sinyangwa flaki Nkwavi. ' V V The complainant Sinyanwa 1-laki stated that when his,. her of cattle returned from the gra 'Z ing grounds on the 13.9.82 he found. 12 head of cattle missing. While 'searching, for stolen cattle the complainant recovere4 one head of cattle at the ,oma of Accused No. 4 1 who said that he boughi the cotq from Acused.No.2 Julius Athurian. The search team proceeded to home of Accused No.2 where they reco.rered some. pieces of the skin of one of' the stolen cattle Other jieces of the.skin hadbóenevoured by Accused -No.2'S pigs.- -The cow &hjbit'Pi and. the skin piece '8 - Exhi.bit P2 were recovered withiiejghte hours, the. cattle had been stolon. Subsequently both accused wore arrested and charged with the piesent offence.

I, Both accused,pêrsonsjgre sworn defences denying the offence chrged. . '. . In his sworn defence Accused No 1, the present appe1larr, stated that he bought the cobt, Exhibit P1 from Accused No. 2 at a7 price of sha. 2 9'.000/= i.n the presence of the village chairiA SU III Pthrnel Ngomoi. 'he Iè ihtütedch 'appeliaiot..t slaughter the cow befcr..e seven days elapse just in case the sellcr Accused No, 2 had stolen it. As it turned out, three days after the purchase of the cow, hii P1 plaincnt recovered it thereby implicating the appellant. ....... : ...... The issue is whether the 1st accused stole the . compfaixint's twelve •cowa. n hisnemoranduri of appeal the appellant stated that the trial raagitrat& erred 'in convicting him acorring the forfeiture of the shs, 4 9 000/= found in his possosthibn at the time of arrest and further orderirg hiriio., pay conipensation for the unrecoverod cattle .. . .. , Mr, Mwidunda leaned State 4ttorney did not dupport,the conviction againstAccused. ,No I on the ground that the. said accused had bought the suspected cow Exhibit P1 from ' Accused No,2in the presonce of the..vliage.chairan. . '% Tealwith the .iepibUc that because the appellant 'bought the stolen cow,. Ej'jt'P1 froAccused No. 2 who absconded aftr hi doience .'ndhis since remained at large, and in view of the evidence of SNI Mnderei liaki, Accused No. 2 Julius 1thuraan,'.StT.I ifliutaSilayo, S.U•II Abdallahiflambo; S.U.III Fanuel'. Ngomoi the village chairman at Mbacwei yillage" Who ins'tricted the appellant not to slaightor the cow. Exhib,t P1 before a week elapsed. on suspion that it could have been stolen; and S.U.IV.Biapenda...Shaghira, all of whom said that

tI 3 fI the appellant had bought the cow frau Accused No. 2 who is at large, the trial court erred in convicting the ajpeliant of cattle theft. In uy considered view, the learned trial uaitrate ought to have feund the appellant not guilty of cattle theft, OUT uilty of receiving stolen or unlafully obtained cattle c/s 311 of cap. 16 for two reasonsi . One, Accused No. 2 and another youth who is also at laro took the / cattle to the appellant Lduring the dark hours of the night at 8.00p.r. for salej Any reaonable person would suspect youths soiling cattle at nit when there are cattle auctions where cattle are sold on specified days and hours at day t i:ee. o, the gie away price of she. 2 9 000/.- for the cow, chibit P1, would further .eake any reasonable adult suspect t 1 a the said cow way stolen or unlawfuly ohtaiiied particularly whun the appellant stated that the then current' prico for cattle at their villao auction was she. 50 00 7=. For the above. reasons the c nviction of cattle theft c/s 265 and 268 of the penal code is quashed and oat eside The appellant is hereby found guilty and convicted of receiving a stolen cow c/s 311011 of the penal code in that he received, retained and bought the cow chibit P1 laiowing or having reason to believe the cow had been stolen or unlawfully obtained by Accused No. 2 and his co-suspect who is at large. Even the village chairan, S.U.III Fanuol Ngouoi suspected the cow which was why he instructed the appellant not to slaughter it until a week paosea thereby enabling the cou10nent to recover the cow three :lius after the theft. The sentence of five years iprisonraent is lawful for receiving stolen cattle c/s 311(1) Of the penal code so it shall ronain undisturbed. Since the appellant rec;ived only one of the 12 stolen cattle, chibit P1 out did not stea.l the said cattle, the forfeiture and corepensation orders cann6t be sustained against the appellant. Accordingly the forfeiture of she. 4,0004 and the co:ipensaticn orders against the appellant are quashed and set aside. The she. 4000/= to be released to the appellant because the coi, Thchibit P1, was recovered 4 ... ....,-

4 1? by th c::li.ncnt. i1ceued No. 2 Julius Athu. :n i li.ba to ce:ienate the cau2lainait for the 11 unrecovered head of cattle valued at sho, 350/=, the value stated on thecharge sheet. Save for substituting the cenviction with that of eeejving stolen cattle, the appeal is p.rtially sucoessful in reepect of the forfeitue and compensation order against the appellent. It is so Ordered. . E.N. WiThO. At iirusha this. 3/7/91. Apellont z abi?nt. . Respondent iir. Lundu for. JUDGE. 3/7/ 1991. .. ENN/L1. 1