19750528 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO., 231 OF 1973 ORIGINAL CRIMINAL CASE NO., 312 OF 1972 OF THE DISTRICT COURT OF SINGIDA DISTRICT AT SINGIDA BEFORE J. W. KAYOMBO ESQO, DISTRICT MAGISTRATE ALLY @ IHIKI SIO ILUNDE APPELLANT (oRIGI1TAL ACCUSED) versus THE REPUBLIC • RESPONDENT (ORIGINAL PROSECUTOR) CHARGE: Cattle theft c/s 265 of the Penal Code, Cap.6V4 of the laws0 E! - 2 J U D G M E N T -------- MNZA J JO Six accused persons were charged with and convicted ofcattle theff c1s 265 and 268 of the Penal Code and each sentenced to the statutory sentence of five years imprisonment0 Dissatisfied with t ie conviction and sentence three of the accused appealed to this court. On 27/3/75 I heard the appeals0 The appeal of the first appellant (6th accused) in the lower court was dismissed and appeals of the other two appellants were allowed. For ends of justice the evidence relied upon by the learned district magistrate in respect of the other accused was also scrutinized and the court also ordered their release from custody0 Judgment was reserved. I now give my judgment. On 2 4 1 9 / 7 2 at about 11 p.m0 the complainant (Pw.1) had his cattle stolen from his kraal. He alerted his neighbours and a search started. The villagers following hoof- marks managed to overtake the thieves who on seeing the searching party took to their heels. A chase ensured and the first appellant was arrested. On being interrogated he admitted that he was one of the thieves who had broken into complainant's kral and stole his cattle. He also mentioned the 2nd, the 3rd, 4th, 5th and the 6th accused persons as having participa ted in. the commission of the crime. The first appellant was later sent to a local chairman of conciliation board before who.'he again admitted having stolen complainant's cattle. Because of his mentioning the--other five accused persons these were eventually arrested and they were all charged with cattle theft and convicted-of the offence as charged. • During the trial the first appellant admitted his confession to the villagers and to the chairman (PW.6)0 Taking into account the evidnce of the villagers (PW.1, PW.2, PW.3 and Pw.4) who arrested the first appel—. lant, and his confession to the villagers and to the chairman (PW.6), there could be no doubt that the first appellant was one of the thieves who had stolen complainant's cattle. .. . . Indeed, and as rightly argued by the learned State Attorney, even if first appellant's confession was to be excluded there was • 0 0 02 / / - 2 1 - still ample evidence implicating him with the offence, as he was caught red-handed as he was (together with other people) hustling the stolen cattle away0 This was whyl dismissed first appellant's appeal. As to the evidence against the remaining five accused persons the only evidence tending to implicate them with the offence was the first appellant's confession. As it has repeatedly been held by this court and the court of appeal a confession by an accused person implicating a co-accused with the offence charged is evidence of the weakest kind especially (as it was in this case) when such •confession is unsupported by other evidence. There was, I agree, evidence that the remaining accused persons had confessed their guilt to one, Oman (Pw.4) but they all retracted their confession during the trial. Notwithstanding the retractions the learned magistrate acted on the retracted confessions a±id con- victed them. Nowhere in his long judgment did the magistrate warn himself as to the danger of acting on a retracted confession. It is always unsafe to act on a retracted confession in the absence of corroboration in material particulars - pub1ic vs. Mutwiwa s/o Maing.i (1935) E.AOCCA, 66. This being the law this court had no alternative but to order the release of the remaining five accused persons. And, if I may add, the Republic did not support the convictions. DODOMA N. S. Miizas 28th Nay, 1975 JUD'