19710305 TZHC Mwanza3

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SM OtTM $ p RulnsvFj esttooq t uo pe4tnbo3 SM .u11edd eqq. nq 'unoo q.SJTJ et. jo xw 1,oaCqns ei. powxo; v2 unsvDI WOJ.J PCAT.008J sts a. jo 2UTTVOqs Vauoui iraq tts 130 Sv auo pup p,9unsrjqeuo wox; IeAtoe1sox pa.tooex ot tTott —/09 w —/oo •sqs potxdoxddstw oTq pOuoçqqs Os 8[ttM qpIfl. pT5 5M u9utt3 ut jnoo iuJtxcj eqtt( pouot s q.anoo &.xuit.xd p auvq. 1txeqw oq. qv s& u'11edd's otj .eoueu9s pue UOt0tAUOO sutee seedde MOU OR ae ;o SJr99 çj7 cioqe seM ot os'rveooq euso ;o so.xs Ot4 tzewtiosithiii SXeOV 4 O. pOOUOUOS pus tfltOO puooes OIfl. ilO p90ttU00 st .nq Tutioo .sJtj eq uo pa'tnboe -' OTfl. H eoo Itd ;O pile OLZ SUOTq09S o. gapaquoo qupAjas otqttd Rq RuTjvoOf a Jo sTunoo OM. TtM pexeto SM pgweTqopl TTnqwv WSTTadd-e etj, fOVVDNVSI)I ,Smprl 914. JO t.tA-.91f&eO 0P00 1U9d o jo oLz T ç9 s/. 90tAXEiS otqnc stlq. Ut p9OICTW9 U09.Xed iVq —:5TfJV}.JD (HoLnoori oHo) ..QI.000.0800000000 .......... 00 ••••••• J1Mt'1.MOdSH 3I'IafldtH itIII, SflH5IA (a'noov. 'iouo) 0 •••••• •• • 0 S 0 5 0 ••••••••••• S ovaa LNV'I'Iddv tWVHO1I In1fl[T\IV1L (vIaIDvir M.IcIISre1 OIO1 U MOM VDIqVTNIHS JV 10191SICE VDMVANIHt o ITIOD aoniirn alll dtO oL6t dO O? ' ON 9 9-0 'iVNIIAIIHO rnrNIon{o) oL6i io 199 ON qVUddV ThTIDIIHD JHflOO HDIH iroia1oictiunr avTrudv °VZVMW JjV -- VINVZITLTJ JO JiUnOD HDIH allJj NI - IA - 2- or not the money was in fact paid to the appellant. F.W.l, a woman Ward Exeoutive Off jeer, said that she had lent ehs. 200/- to the appellant, but that when she tried to recover it, the appellant failed to repay it and instead he preferred a charge against her for operating a pombe shop without a valid licence. The witness further said that she was jointly,charged for this offence with four of her servants, namely, Ntigia (r.w.ii), Hamiei (P.w.2), Juma (F.W.8) and one Iviasunga who, as I have indicated earlier, did not give evidence because he could not be traced. She was released on bail after F.W.9, the couit cleric. at the same court, had stood surety for her in the sum of shs. 2000/-. Two of her co-accused, namely, P.W,ll and Masunga were released on cash bail of shs. 300/-, and she saw P.W.11 and Masunga each paying shs. 300/- to the appellant. Mr. Kuldip Singh, who appeared for the appellant, contended that ILhis witness was unreliable because she contradicted herself in her evidence and she also contradicted other prosecution witnesses. In her examination-in-chief, this witness had said that only one of her co-accused was remanded in custody but the other three were released on cash bail of shs. 300/- each and that she saw them paying this amount. In her cross-examination, however, she changed her story and said that of these three, only P.W.11 and Masunga paid shs. 300/= each while the third accused person, F.W.2, paid shs. ioo/- only. Yet, in her statement to the police which was put in evidence as Exhibit-A, she was recorded to have said that F.W.11 paid shs.260/-. •uite clearly, there were contra- dictions and inconsistencies in the evidence of this witness which would appear to suggest that she was not at all sure of what she was talking about. This view ap, ears to be supported by her police statement (Exhibit-A), in which she said, "They (Co-accused.) were made to pay money. I was made to understand that Hamisi paid shs. 100/-, Masunga paid slis. 300/- and Ntigia paid shs. 260/." If she SdW by herself the payments being made, she would have said 80 and she would not have said that she was made to understand so. I am therefore of the view that her evidence was unreliable because it seems to be based not on what she in fact saw but rather on what she was made to understand. The other witnesses who testified on this point were F.w.8 1 P.W.9 and F.W.11 but the learned counsel for the appellant submitted that these witnesses were equally unreliable for a number of roasnn. First, the witnesses contradicted one . . . . . . .3.... .. -.-- -3- another, on the question of the denominations in which the alleged sum of shs. 260/- was paid to the appellant. P.W.8 said that he saw the appellant being paid she. 560/- in 20 she. notes. According to him, therefore, the alleged sum od shs. 260/- which formed part of shs. 560/- must have been paid in shs. 20/- notes. T,W.9 however, said that the sum of she. 260/- was paid in two notes of she. ioo/-. and three notes of she, 20/-. Yet, according to P.W.11, who is alleged to have made the payment, the money was paid in two notes of shs. ioo/-, two notes of shs, 20/- md two notes of she. 10/-. To my mind, such discrepancies tend to cast a doubt on the reliability of the evidence of these witnesses. The more serious aspect of the matter, however, is that the prosecution witnesses Nos. 1, 2, 8, 9 and 11, whose evidence was relied upon to convict the appellant, were such that for various reasons their evidence ouht generally to have been scrutinised with.great care before it was accepted and acted upon. But the learned magistrate does not appear to have exercised any such careful scrutiny. 1 .W.1 stated in court that she was angry with the appellant because he had refused to repay her the loan of shs. 200/-. There is further evidence to show that the appellant did cause P.W.l to be charged before him for operating a pombe shop without a licence. It is therefore clear that P.W.l and the appellant were in bad terms and it would seem that this could have possibly motivated P.W.l to give false evidence against the appellant in order to put him in trouble. Her evidence, therefore, ought to have been approached with caution before it was accepted and acted upon, but the learned magistrate hs not done so. As regards Y.W.2 and T.W.11, there was evidence that the appellant had caused thorn to be arrested and chargcd jointly with P.W.l although they wcrc subscuantly acquittcd. It is therefore possible that th.so two witnesses miht have a grudge against the appellant which could cause them to give false evidence against the appellant in order to revenge. As noted earlier, P.W.2 and F.W.11 were employees of F.W.l and the fact that the appellant caused these three to be charged would tend to increase the possibility of a joint attempt by thorn to tell deliberate lice against the appellant in order to revenge. The learned magistrate did not approaoh the evidence of these three witnesses from that angle; merely accepted it on its face value. Had he properly directed himself as suggested,. I am unable to say that he would have necessarily accepted their cvidencc. As for P.W. 9, the court clerk, the learned magistrate found that he was in bad terms with the appellant. Again, his own evidence was that as a court clerk it was his duty to receive all the monies, including bail monies, which were paid at the court and to issue receipts for such payments. He dczc.d, howovor, to have received, the .-.....4...... .... S . ç;. • •••. • S S - . L .. ..: Oqq. Ut 3J3tO IflOO 3fl O,. UO posscd picTq oq jvT4q. flc Dtj °I'J £!It. d0031 oU pip Dtt etq. pps 'tAOMOtT 'uTtodd i ;sWtq .utTodd 3tq osnooq p'orpoJd oq Iou piroo OTTS pts ou. poT uonooso.d oqj, pooxq. .10 poonpoxd qou si't [ic1 7qs v o JOS x -,p.xo oq. opw oiat o. p•Dop c u'tiodd cq. -qoTqm uo ott; oo o. qtq. ptmox otfl. 110 U0t0tAUO0 Otfl. p04 TtU Ut'tOdd otq. .xo; ioimo o1qxodctnsurt uototuoo Otfl. .xopuoi oq. SflOtJOS /UOt0tJ3flS ssm tlol iq m UOt00.1tpBtW 0 po q uuowe OS op O. , Stt 9 vlfl. MOTA Dtq. 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S.S02.fl$ 9t1 JO0Jq OJfl00 v sv iVoUOw UTTOS JOS pouotdwi S8M OTJ 'q'tfl. 3tWP Ott 110 J3u1 qTq 00110011 fl0T.tM DUTUOT !~ oive 30 OOUO;30 3t[. 10; uostd Ut s.t or q. SaTj qs ptS 07 gUOT js UTW V X0—SSOJo Bitt UI ttfl.I. 30 BSOU1M v oq qouuo OtT T.fl. TSO ,92us fl0M tTOIT.TM OOUOPTAO sTq Ut U1toWOS St O"OqT P 00 PUI 't1ri3o.Io AxoA pOstUtqnos oq O1. qtno SS3U1M P t0flS 30 OOUOptAO OT. I R T iso T o o.tnb U1TOB .103 O0U0U0S UOBIJd s 9U1A.IOS SM 'pUt uosod p90tAU00 8 SCM 9!i.j 5 qt .103 tIflO008 O. dqnp sTq SM pus io; poqim000t UOOq q.ou stq iouow stqq osnooq RTT T Tq s T l pt0A o .xop.xo ut I lls qs iq ptd SM iVouow ot. ;i 'JO .U 8 I1OCT (F8 oqj tt1TM SWJ3. pq Ut StM Ot 9Sfl00q JOtfltO qu - o " dv alqq- ~ suTuDs SOTT PTOI. ot pnoo sSOu.TM * q.UT` jT odds OT. &q POAI000J S1M q. T --t4- P 12 3-TTs P1112 uotsnb Ut icouow a -5-- way after he had finished dealing with the matter. It would appear that the said file was not essential in order to prove the charge. The prosecution attempted to prove their case by calling the witness who is said to have paid the money to the appellant and the witnesses who arc said to have seen the alleged payment being made. To my mind, this kind of evidcnce, if believed, was the best evidence which one could lead on the matter, and if that evidence was satisfactory, it would be sufficient to sustain the couviction notwithtanding that the said file was not produced. However, as I have endcavourcd to show earlier in this judgment, the evidence of these witnesses respecting the alleged payment was unsatisfatory in a number of ways such that it could not safely be relied upon to convict the appellant. One other matter remains to be considered. During the trial, it appeared that F,W.9 gave evidence which contradicted his previous statement made to the police. The defence sought to put his police statement in evidence in order to cross-examine him it with a view to discrediting him. The learned trial magistrate, however, disallowed the application and in doing so, he stated:- "Although a previous statement made by a witness and reduced in writing could be used as evidence by the opposite party to contradict a given witness, I am unable to see the logic of tendering such statement as exhibit. The opposite party is in my opinion entitled to see the statement and use it to get those points he feels are relovant for the purpose of contradicting the witness. As long as he has sufficiently brought to the attention of the court such statements or portion of evidence which he relies to impeach, the court would record such portions for the purpose of assessing the credibility of the witness. It serves no purpose after taking note of the contradiction extracted out of a cross-examination, to admit such statement as exhibit. For these reasons, I would sustain the objection on behalf of the Republic. However, this does not bar the defence to employ this defect on the part of the witness to destroy the evidence of P.W.9 at the time of making the final subminsions." This procedure would appear to be wrong. The prectice of our courts has been that where a witness is cross-examined on his previous statement to the police, the contents of which he does not admit, then the said statement to the police ou.,ht to be put ••*• •*U•. - -- - - -p o - çruTe - xo czno2 Ca: ueddt .Xo tcrt ctCC?Tfl)I tO2 c- a: VZNVMII Xtf1f DV (voMvn1 0HH) iL61 'qoJTi 14 UO ZUMW UT P9JOATIE 4OSnO Ut p[DtJ &T1.tlMI CStMJCtO SS-OUtt p3se9J eq o. si uTedd ou put ootxoquos et isnh pu uoiotiuoo oqq. opTsv ps 'juadde OT.. MO PIT1 OM i 'iV1qunbesuo UOtOTAUOO etq podn ol. ejstzn eq pino .t oso eqq. jo eousuinoxto eq. utxepTsuoo c.mjq. prn co utwtxo e irt jood jo pipus potnboi OTt. ;o JOTS jvj Iloj G2JIO Ot. 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