19840803 TZHC Dar es Salaam2

IN THE HIGH COURT OF' TANZANIA ...J' . AT DAR ES SAI.r .AM APPELLATE J1JR!SDICTION HIGH COUH'r CRIMiNAL APPJ:i:AL NOo35/84 ORIGINAL . CIUMINAL CA3E NO .149/ 82 OF THE DISTRICT COUflT OF ILALA DISTRICT AT KIVUKONI DEFORE LONGWAY SENIOH RESIDENT MAGISTHATE. l, c 6363 P•. o. JlJMA) 0 0 0 0 . APP'"',TLAN. T.• 2. C 5009 PC~ GIDI ON)•• • • • • • • ( O;i.~i;al ~cused}. versus THE UNITED REPtJI3LIC ................. ooo•RESPONDENT (Original Prosecutor)

J U D G ME N T JHll.VERI 2 AG. J. This is an Appeal from JudGment dated 26th March, 1984 by M.• H. C. a. Longway, Senior Resident Magistrate in Criminal Case No. 149 of 1982 in the District Court of Ilala District a.t Kivukoni. Appellants were charged as follows: 1st Accused: - No. C 6363 P/C. Juma, Male adult, Aged 21 years, Tanzanian, Christian of Msimbazi Ila.la. Police Station, Dar es Salaam. 2nd Accused: - No. C 5009 ?/C. Gidion, ,Male, Adult, Aged 23 years, Tanzanian, Christian of Msimbazi Ila.la Police Station, Dar es Salaam. !!~t~g)fil:~:of Offence: Soliciting a bribe, contrary to Section 3(1) of the Prevention of Corruption Act No.16 of 1971. Particulars of the Offence: No. C 6363 P/C Juma and No. C.5009 P/C Gidion C~arged on 10th January, 1979 within Dar es Salaam Region being employeea of Tanzania Police Force, did corruptly solicit a bribe of Shs. 600/- from one Ramdhani Selema.ni as an inducement to withhold the charge of assault causing actual bodily harm vide 12A/IR/13- 10/7 8 age.inst the s aid Ra.madhani and not to send the said · Raoadhani Selema.ni before court to answer the said cha.rgeo 2nd Count - For 1st Accused Statement of the Offence: Corrupt transaction with agent,. contrary to section 3(1) and 3(a.) of' the Prevention of corruption Act. No. 16 of 1971. Particulars of the Offence: No. C 6363 P/Co Juma charged on 13th Ja.nuaryi 1979 at a.bout ... 2 11

.•50 a,m. within Dar es Salaam Region being a. person employed "r} t by the 'l'anzania Police Poree did corruptly receive Shs. 200/= from o: from one Hamdhani 0 elema.ni as -an inclucoment to withhold the charge of t:i.ssa.ui t causine; actual bodily harm vicle llA/IR/13.10/79 aeainst the said Ham d.hruii Selemani and as a result not to sent . the said Ham.dhani Selemani before the Court to answer the said charge o It has been contented by I"lro Maira ._ the Learned counsel for the Appellants that there is no~hinc; on the record that the Appellants were dealine with the matter. According to him Appellants were not in a position either to favour or with- hold favour in their official capacity. He further contended that Appellants were not involved either in arresting or investigating the crime. It is not in dispute that both the Appellants are employe0s of tho Tanzania Police Forcei and they are attached to IJ:ala. Police Station, Dar es Salaam. There is ample eYidence that both the Appellants partici- pated in soliciting the bribe from Ramdhani Selemani PW.5. PW.5 waa charged of assault and his matter was being daait by 1st Appellant in his official capacity. It.would be an offence contrary to Section 3(1) of the Prevention of corruption Act No.16 of 1971 for a Police. Constable who has a duty to do something in which public are interested to receive a bribe either to act in a

manner contrary to his duty or to show favour in the dische.ree of his functionso This court also finds that there has been ~mspiracy batw.een both the Appellants and insredients of Section 384 of the Penal Code have been proved,_ It has been further contended by Mr •. Maira that PWo5 had charges pending age.inst him and that his evidac.ce should be taken with greatest caution. The Learned trial Magistrate has exercised utmost caution while d ea.ling with the evidence of PW .5 when she states in her Jud.£jment interaliag- 'Since the story th11t the accused asked/solicited for money from PW.5 came from the complainant PWe5 him- self, caution hn.s to be exercised to see that there is supporting evidence of other witnesses or· circums- tances, tending to show the truth of the story. By ·· •.•• 0 /.3·. •• ......: 3 reporting the incident the c omplainart had moved a step away from his status of an accomplice~-' Undel Section 142 of the Evidence Act - PW.5 was a ·competent witness. Howerer, it Wfl.S proper for the trial court to regard him as a tainted witness and seek. ,,· supportine; evidence of other : witnesses or circumstances tending to show the truth of that evidence. The kind of corroboration required is not confirmation by . . independent evidence of every-thine that PWo5 has said as other. wise he would be hardly called competent witness but what is - · ·required is some

independent testimony which affects the - Appellants to connect them with the crime;, that is evidence direct or circumstantial which implicates the Appellants, which confirms in some material particular not. only the evidence ·given by PW .5 that the crime has been committed but also the evidence that the Appellants committed it. This court. finds that the Appellants had access to.the file of PW.5 and· could deal with it as Police Of.ficers. PW.l corroborates the evidehce of PW.5. PW.4 saw the complainant PW.5 handing the money to 1st Appellant_. There is no possibility of planting the money as traces was afterwards and time· of searching. 1st Appellant has stated that he did not quarrel with · PW.5 over the girl Theclala Kaseko. This court is in agreement with the lower court that ·Prosecution proved its <!Lse beyond reasonable doubt aganst both the Appellants~ Appellants both being members of the Police Force - the Of'fences ~ith which they have been charged are extremely serious and in the circumstances of this case - this court holds that the sentences are reasonable. Accordingly - convictions against both the Appellants upheld - Sentences confirmed. Appeal dismiss0d. . ' 31/7/i984 ••• 0 ./4. - 4 .. 3rd August, 1984 Cormn: Jhaveri., Ag. J. Maira for the Appellants Miss Korosso for the Hepublic. Judgment delivered. - ---~--.....-~',.__ ---= . . _.._.' -· JHAVli:RT AG. JUDGE DAR ES S.AL'll\M. • ~d Au5u, t, 1984.