salvatory barabara vs republic 1975 tzhc 5 29 september 1975

IN T'tS TIG'; COUHT 05 TANZANIA • ••AT TABORA APPZDLLAT3 JURISDICTIOIT f.v>' ■,"£» • CRII:I£AI/ APPEAL NO, 85 OF 1975 (ORIGINAL CRIUIITAl CASE NO. 26 OF 1975 OF THE DISTRICT COURT OF IJP* ITDA ) ; SALVATORY BAJUBARA .............. ... .. . . APPELIANT (Original-Accused) Versus ‘ . .... THE REPUBLIC ............. ............ .. RESPONDENT (Original Prosecutor)' J. U D G E M E IT T MAPIGANO, D. P. - J. . The"'appellant SAIA VATORY S/0 BAR.-iB^RA was convicted of ; HZV. ,~t ,« '.,'• > ' ~» i‘ • / xl" office breaking, contrary to Section 296(1) of the Penal Codc-.; ; Another accused'WILLXAM S/0 SIEAZWE who was tried jointly with him was'also comhicted and has^ apparently, not appealed. •• •, They were referred to as- the first and,.second accused respective t 5 .V. < ? ‘£ind I %ill''continue1calling 'them so in this judgment . • ..... The particulars of the offence recited that on 28/12/74 about 17*30 hours, at Ilpanda, the two accused persons^broke into the office* of the Ivlbeya Region Co-operative.r/Union whence they-stole >cash, Shs. 450/=,' the property of the said Union-. Bo'th pleaded '".Not Guilty1! to-the charge. The prosecution1s'case established and there was no dispute that the office was in fact broken into and the raoney which belonged' to the Union stolen during the'night in question. At that tine the first accused and the second accused were in employ of the Union at 'that office as cashier and watchman respectively. 'It was'also not in dispute that the offence was committed when the second accused’was on duty or supposed to be on duty at the office. ' ' ' There were :tlmee pieces of evidence..against the first accused. (^he first was an allegation,that he. had been absent fron duty from 24/12/74 to 30/12/74:, tduring which period the off once took place. Very obviously, this by itself was too wealc to .connect'him with "the crime. And in .any case, the accused who admitted that he was absent during;’that period, gave an explanation in^th-.t regard, •*v which explanation : x. . r • ? ./ was fully backed up by P.W.2 Mlimbila who was inchsrge of the office. It was ' - ....' /2 " simply that there was no work for*-ham to do at that tine and did not see any sense in going'to .the offiee. Indeed, the learnc-d Magistrate found that explanation reasonable. The second piece of evidence was ‘that on <28/12/74 during the ^ afternoon, the first accused had gone tc the house of P.W.2 — y^bold him that the money was in the office and promised that he would lend him the amount he needed on the following day. In •r:"*' ( siXbstance '/'the* first- ac.cused did>not deny that account and, needless to observe, tlx: t fact alone could not haveimplicated him in the offence; ■ fi n";* ; |i ... , The third-piece iwas a .?t?tpi^9nt (to Detective Sergeant David (P*W*l)'by !tlie second accused in which he fully implicated him. According to both P.W.l and P.W.2, the second accused first denied any knowledge--of--the culprit and that it V7as only when he was giving a statement to the Police in writing, that 'he^ started to implicate the first accused. But, in effect, the 'i'.T«*:J"\ •second accused retracted' that statement when ho gave evidence „ on oatk at his trial. He claimed that what he wrote at the A.. }J , . '• ; . . * •Police Station v/as wh-t was •dictated to/.him by the Police*' •■■V :'It. .. ;The learned trial Magistrate held that the statement of ■ the second accused to the Police was- true and that the fact that the first accused was at the material time in great need "ofmoney ^©rtified him in that belief. He concluded his Judg­ ment in the following terms.! There have been all evidence th?t there was noney received by P.W.2. There is agreement that P.W.2 and first accused agreed to meet on 29/12/74 so that the first accused could be advanced the money. So the first accused after Jmowing that the money was was in'the drawer, 'of P.V/.2, ho wont and conspired with '*‘ 1 r-:1 ' ; the second accused and stole .it. The second accused’wa,s not an accused when he ..revealed what happened (which‘is debatable). “I-feel that there is enough circumstantial evidence to make this court safely act on it. 'I b'blaeve that the accusods had conspired and broke th eof fico;-and stole money as alleged ............ I convict both accused • as charged-.” . ;• . . ... - ii1. The appeal is mainly on tiic '-following, four grounds, (v/ith suit^le alterations) : * • - ..-* v . 1 ) That if reajlly.. the second accused-saw me enter the • : office, through the window, why did he not take any " step to apprehend me f . \ ... • ' /"K (2) That if the second, accused saw mo "breaking into the office, why did he not say so at the first instance when he was questioned about itj (3) That if what the second related to the Police at the -Police Station was true, why did he not repeat it ..'in court throughout the trial; and (4) That the fact that I had approached P.W.2 for money could not have established the offence against me beyond reasonable doubt” . I must say at once th^t there is considerable merit in each of these arguments. It is clear til t the learned Magistrate based the -conviction^principally on the statement of the second accused at the Police Station. That statement, as the learned Magistrate found,:conflicted with what he had earlier told the Police in material'-particulars, and as e '.rlier remarked, it was actually retracted by the second accused when he gave' evidence in court* Aet alone that the repeated inconsistencies were a reflection on his credibility, the fact that he w^s, in the circumstances of this co.se, naturally the first prime suspect introduced a big element in his motivation for shifting the blame for the offence on another person. And since he did not at all implicate himself in that statement, there was strong cause to doubt the veracity of his story. But, that is only on the assumption t h ’t the ct-'torient was evidence against the first accused. The true position is t h ’t it was not and thus it should not have been taken into considera tion the first accused. I will remind the learned Magistrate that even in a situation whore a.n accused implicates his co- accused in an unsworn statement made in court, th-t statement cannot in law be taken into consider’’tion against the the co-a,ccused: Sec Patrici Ozia V B - 1957 3A 36 , among many authorities. It would have been different if the second accused had given such evidence in court on o'th or affirmation. In that event his evidence would have been on the same footing as that of any other witness and might hrvc been taken into considera.tion against the first a.ccused irrespective of whether the second accused would have implicated himself or not; Of course, bearing in mind that it is essentially accomplice evidence• The sun of it all is th t the conviction was certainly based on evidence which w r,s bad in law and weak in fact and it is not surprising that Mr. Nt'baye for the Republic felt bound to concedo strrd£,htaway that it did not support tiic conviction. The appeal is accordingly allowed and the conviction quashed. The sontonco of five- years imprisonment, which incidentally was excessive, as well as the order for compensation are set aside and the appellant is. to be sot free fron custody forthwith unless he is detained on another lawful ground. Delivered. ’ Mr.' Ntabaye for the Republic* * Appellant absent. Tabora D. P. IlAPI&n'TQ, 29th September, 1975 •• JUDGE. *