Matele s/o Lelego v. R. Crim. App. 147-M-71, 24/3/72, Kisanga J.

 

Matele s/o Lelego v. R. Crim. App. 147-M-71, 24/3/72, Kisanga J.

The appellant was convicted of cattle theft c/ss 268 and 265, Penal Code and was sentence to 3 years’ imprisonment without strokes of corporal punishment as he was above 45 years of age. He has now appealed. The complainant (PW1) said that one night his cattle numbering 40 were stolen. On the following day they traced the foot marks and they were joined by police in this search. They eventually came to the home of PW4 where they found a herd of cattle form which PW1 identified 4 of his stolen cattle. PW4 testified that the cattle in question were brought to his home at night by the appellant and two other persons whose names he also mentioned and that they told him that they bought them at an auction. When the police arrived at his home during the investigation the appellant was present but ran away and escaped as he saw the police car approaching. The appellant in his defence denied the charge. He said that the cattle were stolen by other people, and he mentioned some of them. In answer to the court he said that he mentioned the thieves to PW3, the Village Chief, in the presence of PW4.

            Held: (1) “Mr. Rahim who appeared for the Republic did not seed to support the conviction. He submitted that the only evidence implicating the appellant is that of PW4. But since PW4 was found in possession of the cattle, he was a person with an interest of his own to serve in the matter and therefore his evidence required corroboration. There was no such corroboration and therefore the conviction was bad. Mr. Rahim also cited the case of Dengwa Masiku v. R. (1967) H.C.D. n. 454 in support of this submission. I agree that where a witness is shown to be a suspect then his evidence would require corroboration. But it should be noted that it is not in every case that a witness will be a suspect merely because he is found in possession of the stolen property. In some cases possession by a witness of the stolen property may be quite innocent, and where on full consideration of all the circumstances it is shown that the witness was not a suspect then it is clear to me that there would be not basis for applying the rule in Dengwa’s case mentioned above because in such circumstances the witness is not, for purposes of the rule, a person with an interest of his own to serve in the matter”. (2) “It would seem that the facts of the preset case do not bring PW4 within the rule in Dengwa’s case. PW4 himself said that the cattle were brought to his home by the appellant and two other persons who told him that they bought them from the auction. The appellant in his defence alleged that he knew the thieves, and he mentioned some names. He necessarily excluded PW4 because he does not mention his name as one of the thieves, and also because according to him he mentioned the names of the thieves in the presence of he Village Chief (PW3) and PW4 himself. This to my mind completely clears PW4 because since the appellant knew the thieves but he does not include PW4 cannot be a suspect; if he were then at least the appellant would have mentioned him. Thus I am satisfied that PW4 was not a suspect and consequently the need for corroboration of his evidence would not arise.” (3) “The complainant (PW1) adequately identified the cattle and the evidence of PW4 …..Sufficiently implicates the appellant with the offence,, and the sentence imposed is the minimum prescribed by law. In the result the appeal is dismissed in its entirety.