19770614 TZHC Arusha

- - .. IN THi., HICH COU OF i!dTZLiTIA

AT LIWSHA

LPPELLLTE JURISDICTION HIGH COUIT CRIIINLL APPEAL NO. 64 OF 1976 ORIGINAL CRIMINAL CASE NO. 415 OF 1975 OF THE DITRICT.OUT?LT OF ARIJSHA DISTRICT T Id.USHA BEFORE: J. S. T.51TCRUTO, Escj., Resident Magistrate NO • B. 2517 D.0 iICiLL :iv.LIIIGA ..• APPELi1NT (Original Accused) versus THE RERLIC. . " ... ... ... * . • . . . ... RESPOENT (Original Prosecutor) JUDGJ.TEITT JONAThJT ih the Resident Magistrate's Couit, iusha Detective • Constab O MICHLL vias coriviôtod of corrupt±oh c/s 3(1) of the '..' Prveir'ion of Corru.ption Act and given tho. ninimu sentence.. • . .Frdia the fOonvictioh ho has apoa1odto this court. Ther is no d L5 te b hat P. J .6 JOH!tSON PAUL and others wor arested by the olice as suspects. in a burglary inclLlont an. Gha me ie.vc.stigati o ns ioro bci iir conducted •by the apollant It ias alleged by P.VI.6 that, the appellant ..::." . .so1iit'ed:frcin ,hin L5OO as an inducenont to drop the charge that 'es mpen.din: He coLa1sind of this to P.1,1 A .5 .P. MIIAY who ras Ghe oñ±cor coiianJing the police scation and t4a latter docijc jO lay a t'ap-. Accordingly, P.1.l ins bruO tcd P.J.6 c s inc Etcl]enL anc' orgroo on the time • ... . . andvenuo. PVT6 later reported back that the ag±ed' venue wos a boor sGc'rc. E.aoro is io vor sono coAflict as to the agreed u±no. P,d.6 SEJJ ib was o o'clock t.aat aitornoon butP, 1J.l said 1I,V.6 uoid Jaifi the agroed uiUC was 2.30

p.m. • . Some iinutos bóoro this iino..he had comnandeered Police constgib1os GASAR (P.N.2) and MATIKU (P.\7.4) and took them bo inc central., hue s band ihien ovorlooke. ih agreed venue. There P..l •hane.oa o ,].6 two currency notes of &i.lOO which he was tO.iV.L: the apo1iant., They hEid already been photostatod bthc io1ice'statjon by P.W.5. The three S police officers.also took down their serial nubers' • . According to P.W.6 in his', evidence the appdllaiit found him in the boor store e together they then *onb into the court 'yard vihre the wi1ncss handed the aprcllan - the two • . . notes. Ho received tho4l 'and itv.'as agreed that the'witness should jv hin tzic. balanco at another place later that day. •P.W•..6 went out. of t- ho store followed by ihc appellant. The three 'police officers all in civilian clothes had been keeping watch a short distance fro.ç.. the beer store and upon P.W.6 giving the agreed signal,. that is, 'sratchinr his head they hastened up towards thoaellrI't who, upon seing then. doubled up, being pursued by th_-"'j)olic6 officers as they called for hol. This was roecendod to by a number of civilians including P,J. fl.LRIJAfl. .1, -2- All t h ch i oC olic e-oicers ff tosbifid that 2.7.1 loading the chase soon caugiil; up with the appeUurb and that at the place and time of' aoprehension the latter throw the two notes on the ground. - According to P.7l

ho picked up the two nots 'n she d Lhoi to 2.7.3.. P.1. soid on the other hand that they wore picked up by 2.7.3 on the request of • There was however agreement that these were the two notes hndod' to 2.7.6 by P.7l. The apuoliant in his evidence denied the offence. Ho said ho had that afternoon gone to that heer'eirGorc .to.drin. to•P.id not however find his brand oil' boor, so ho left at Once, In the street outsidc: ho not D.\7.3 MLOhI whom he greeted and together they walked in the sane direction • He thon heard shouts behind them. He turned and saw the three policemen following hj., Many people responding to the alarm surrounded him and it seems they would have beaten him up but "for" T;W;it intervention. After that, however, 2.7.1 ran or rushed to 'tho left edge of the roadu and soon cane back to him holding the two notes and forced then upon him alleging • that ho had only jut received mom from 2.7.6. This he promptly denied. 2.7.1 he claimed had taken offence to the arrest ho ,joi na of P. 7 ,6 v'ie ian of the so tribe. He called three witnosans of whom only D.W.3 and D.W.4, would appear relevant. According to the former he met the aprollont an Lmj were islin tnner wnen they hoard three pooplo shouting bc-hind then. They followed thorn and caught and boat the appellant Then one oil thenran a w little nistance aay. A litcle la uo r he cane back holding some money and

alleging 1G was Gho aegollar±t.t s • 'The -evidence of P.74 '-'as to the effect that,,uon the appellant coming into that beer store and finding no beer of his taste ho loft at once. He diU. not sc-c 111. spca'- to any one apart .•' from the store attendant. In agreement o'iith the, judgment of the learnodresident • ' ' magistrate I find the apgellantTs veroion'oi the incident and that of his witness MLOKI rather unrealistic • They both 'say the appellant cias not running. Had that boon' so there would unou1ted1y have been no necessity for' the four pro,eóution witnesses to raise any alarm for assistance. They would merely have tanen the appellant by surprise. It seems door v' alD uht uli gllant upon eceing the police- men doubled up and had to b? pursued The defence has then alleged that 2.7.1 after awgrohnding the ap1iehint ran away t,o cone back having the two notes0 'If it -oas intended to plant them on him obviously he would have had the money handy ror the purpose anc no would not have ri.shod back for ib only afuer tm: arrest. Th learne d OD GO abtorney is 'isinclinm to support the conviction hccuse there are' contradictions in the prosecuGi1 ovodenc, especially having regard to the great varicnco between Ghe evidence of 2. .3 MAHIJMTI and that of the police officers. Some conflicts hve alroacly boon pointed out above. To them............/3 To them there may be aed

another.. While P..7'.1 and said the appellant after receiving the ioney put it in the right hand pocket of his trousers, P.1.2 and P.W:.4 testified he had the money in his left hand. All those conflicts are however imaatcrial for they do not in my view relate to any important aspect of the prosecution case. The learned trial magistrate had full regard to them in her judent but considered, and I agree, that th3 discrepancies or conflicts' are at'triiutabloto either loss of memory or a lack of detailed observation and that the witnesses had otherwise tstifiod truthfully and reliailyo Asgaida 'the evidence of P.W43 he was effectively shcn 'to be a hostile witness and his evidence became practically of no value and adcordingly, 'the contradictions such evidence hears with the other prosecution evidence cannot properly be taken'tzt.o accoun. The conviction appears Iounded. on ample evidence and 1 see no roason 'to interforo Accordingly, the appeal is dismissed in its entirety'. Delivered in open court this 14th day of June, 1977:. (P. M0 JONA TIL PMJ/MTPM. ' .