19860329 TZHC Tabora

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AT TABORA

APPELLATE JURISDICTION (Tabora Registry) (HO) CRIMINAL APPEAL NO. 95 OF 1985 ORIGINAL CRUITNAL CASE NO. 114 OF 1985 OF THE DISTRICT COURT OF URATuIBO DISTRICT

AT URAMBO Before: J .S. MW.AMI 'Esq., PRINCIPAL DISTRICT MAGISTRATE .ADAM HAMISI •••••••••• ~ •••••••••••••••• APPELL.ANT (Original Accused) Versus I THE REPUBLIC ••••••••••••••••••••••• , , ·.RESPONDENT (Original Prosecutor} lst Count: Bree.king into building and stealing c/s 296 (1) of the Penal Code Cap.16 Vol.l of the Laws. 2nd Counts · Brea.king into bl.lilding and stealing c/s 296 (1) of iihe Penal Code Cap. 16 Vol.l of the Laws.

JUDGMENT OHil?ETA, J. In Urambo District Court, the appellant, Adam Hamisi, was jointly charged with two others with the sffences of breaking into a building and stealing in two counts c/ss 296 (1) and 265 of the Penal Code. The appellant was convicted as charged on the first oount but was acquitted on the second count. He was sentenced to three years imprisonment. He now appeals against both the conviction and sentence. The prosecution 1 s·evidence was that during the night of 25th/26th November, 1984$ a c.c .M_. office. at ·rmalamakoye village was broken into and several articles, including lO corrug_ated iron sheets, 195 empty gunny bags and other articles were stole::., therefrom.. Some three weeks later, the ·same office was broken into and 200 exercise books were stol.en therefrom: The matter was the:a.: reported to po~iq¢ and investigations started. ....... ·. /2 (; . !';i ') c.., ., On .26th October 1984, · _the appellant went to o::r:e l.!agoho Kahalwe (P~W.l) and. found P.Vl-~l at his bu.tchery in Urambo _township. The appellant told P .w .1 that he had eight .-·. corrugated iron sheets which he was offering for sale. The appella.ilt told P:w-.1 that the iron -sheets remained after he had completed building his hou.se, -P.W.l told the appellant to gd and bring the iron sheets and the appellant did so. In the presence of an elderly man (P.W.5) P.W.l handed to the

appellant the agreed sum of Shs. 1,000/= and took the iron sheets to his home. On 13th March, 1985" information was received by Vil.lagers of Senda Kanoge village that the appellant was believed to have stolen the iron sheets. One Fanston Edward (P.W.3) then summoned members of Sungu.sungu.. The appellant and two others were swnmoned and interrogated in the bush. The appellant )le , admitted that/stole the iron sheets and gunny bags and_ disclosed that he had sold eight of the iron sheets to P.W.l. P.W.l was then summoned and he readily told them that it was the appellant who had sold the eight iron sheets to him. The iron sheets were then seized. In his defen_ce, the appellant denied having stolen the i iron sheets to P.W.l, and added that he confessed because he was tortured. The learned trial magistrate believed the evidence of P.W.l, P.W.3 and P.W·.5, and after considering the law regarding confessions, he was satisfied that the prosecution had provea::.t~:s case beyond reasonable doubt. He acc·ordingly convicted the appellant as charged. During the hearing of this appeal, Mr. Ntabaye, -learned counsel for the appellant su.bmitted that the conviction was bad because it was largely based on the appellant's retracted confession which had itself been extracted by tortu:t.Et, and that P.W.l was an accomplice. Mr. :Mussa, learned state attorney, on the other hand, · supported

the c-oriviction. In his submission, the confession was admissible a.nd ·that the qllestion of torture, which was never put tb the prosecution witnesses and was only raised at the stage of the defence, was a mefe afterthought. In any case, ·•,. .3 - learned state attorney sll.bmittedll as the confession led. to discovery of the stolen property it was admmissible and was . c·orrectly reli~'g) on by the trial court. With regard to the evidence .of p .:w .~ he sllbmi tted that there was no evidence that P.W.l was ~.ac/;omplice. I will st~rt with the question whether or not P.W.l was an:acco.mplice. p.w.1 bought the i+on sheets in broad daylight, in a public place an~ in the.presence of at least one witness. When contacte:d by Sungusungu people, P. W.1 readily told them that the ap1?~t1::,arit' was the person who had sold the eight iron sheets to him. In the circumstances, therefore,- P.W.l and P.W.5 cannot be said to have aided or abated the commieeion of the crime, let alene that they assisted the guil:iY to excape p~'ishment. In my view, therefore, P.W.l was not an accomplice in any sense. As for his· credibility, I think that his evidence was co~roborated by other witnesses and there is nothing to make Lik.e1He·e• P.W.5 was equally reliable. his e-,,ideno·e suspect. The learned magistrate, therefore, was justified in believing these witnesses. I now turn to the appellant's

confession, and I will proceed on the assumption, as did the trial magistrate, that the confession was induced by turture. · The undisputed fact is that the appellant•s confession led to the discovery of the stolen articles. such confessions are clear»· relevant and admissible •under section 31 of the Evidence Act, Jr,,-:-··. '.Ji:967, (See also Na&alika v.R., (1Q71) H.C.D. 314). That being the pJ:lsit.ion in law, the appellant·t s confession was admissible and .could be acted upon. In view of the eorro~orative evidenc.e of.P.W.l and P.W.5, there cannot be any deubt at a:Ll that the evidence justifier,. the appellant• s 90-,t.etion. · · As for the sentence, I had at first felt that the sentence was illegal. But on perusal of the record, I note that althoµght the~charge alleges the value of property to be ~et 7 ,000/= odd, no evidence at all was led by the. prosecution a~ to the tallie of the property, That being so, I will resolve the m~tter in t~e·appellant 1 s favour. The sentence, therefore, wtl!. remain undisturbed. p. ,. ' .~ . . .;·.. . . •• In fine, this app_eal, is 'dismissed in t:ts . entirety. J ... ,. . ' ,Jt.1::1 ;,~l1i . . ·.. .. ;B:···...D., CHIPETA . ,• . .,Delivered in . ·,:,• '.i.... • !, ., ...I ,. (. .. . . ... --- ... :.~.'\: :.) ·.... .,..