19780626 TZHC Dodoma2

IN THE. HIGH COURT OF TANZANIA AT DODOMA APPELLATE JURISDICTION CRIMINAL APPEAL NO0 12 OF 1978 (oRIGIN'\L CRIMINAL CASE NO0 122 OF 1977 OF THE DISTRICT COURT OF DODOMA) BONIFACE S/O MADEHAO o o 0 • Appellant (Original Accused) ye r S u S THE REPUBLIC. . . . . . . a Respondent (Original Prosecutor) Chargp .: Housebreaking and stealing c/ss 294(1) and 265 of the Penal Code,. J U D G M E N T CHIPETA. J. The appellant Bonif ace Madeha, was charged jointly with one Lalusa Malima with the offonces of housebreakihg and stealing c/ss 294(1) and 265 of the Penal Code, respectively, and were each convicted as charged. Each of them was sentenced to three years imprisonment in respect of the first count, and to 12 months imprisonment in respectof the second count, which sentences were orderd to run concurrently, The appellant now appeals0 The appellantis conviction was based upon the following evidence the second accused broke into the complainant's hpuse and came out running about half an hour later0 Immediately thare after, the complainant discovered that his shs. 1,400/= was missing therefrom0 The second accused then disappeared from the village. At about the same time, the appellant, who was also a resident of that village, also disappeared from the village0 Some five days later, the appellant retirned to the village0 H: had with him new clothes and shoes0 Asked about the whrahouts of the second accused, the appellant said that he had left the second accused at Dodoma. The complainant then.carne to Dodorue and found the second accused at the Railway Station. The complainant then took the second accus-d to police station0 Interrogated by a police officer, the second accused admitted having stolen the money, and added that he had done so on the instructions of the appellant with whom he had shared the money0 On the strengthof this statement the appellant was arrested by a police otficer to whom he confessed to have stolen the money, and added that he had shared it with the second accused In his defence, the appellant denied the allegation and said that the new clothes were his own property. From the foregoing evidence, it is clear that the only evidence acjainst the appellant was his confession to the police officer, the confession of his co—accused which implicated hiri, and the fact that he had new clothes0 Mows there can be no doubt that the appellant's confession to the police officer was inadmissible for the provisions of section 27 and 28 a the Evidence Act. 1967 clearly make such confessions ' k - 2 - inadmissible, That, then, leaves only the confession of the second accused which implicated the appellant0 It has been repeatedly held that a confession of an accused person can only be used as lending assurance to other evidence against the co-accused, evidence which only falls short by a very narrow margin of the standard of proof necessary for a conviction. In othr words, in such a case, what is needed is credible independent evidence which, whm supported by the confession of the co-accused, removes beyond any reasonable doubt the question of innocence. (See KarajoNjonji and others v. R. 20 E.A.C.A. 324, Gopa s/o Gdamebanyre and others v. R., 20 E.A.C.A. 318, 322 In the instant case, the only other evidence against the appellant \.iaS that he had new clothes. But. that alone does not conclusively man that he was the thief. The articles in question were a pair of shoes, a pair of trousers and a belt, and the value of those articles was not given. Besides, there was not a shred of evidence to show that the appellant was such a man of straw as not to afford to buy such articles. In the circumstances, therefore, the convictions of the appellant, which incidentally the Republic declined to support, cannot be sustain .d. It was for the foregoing reasons that I quashed the convict- ions in resct of the appellant, set aside the sentences in respect thereto and ordered his immediate release from custody unless otherwise lawfully detained. Although the second accused has not appealed it was brought to the attention of this court that at the t ne of his conviction he was shown in the charge sheet as aged 14 years, and, therefore, a young person w±thin the meaning of that phrase in the Children and Young Lers;ns Ordinance. A perusal of the record shows that the learned trial magistrate did not address his mind to the provisions of that Ordinance before imposing a custodial sentence on the second accusd. On the basis of those facts, this Court decided to deal with thc: mutt r by way of revision. The second accused was accordingly fcrred to a medical officer for examination as to his age, The• medical officer opined that the second accused is 12 years or 13 yars old. That, threfore, confirms the fact that the second accused is a young person. Under the provisions of section 22 of the Children and Young Persons Ordinance, no young person must be sentenced to imprisonre:nt unless the court considers that none of the other methods in which the case may be legally dealt with by the provisions of that or any other Ordinance is suitable. In the instant case, the second accused was d first offender, and in senta-icing him the learned magistrate gave no reasons whatsoever. On the facts and circumstances of this case, I see nothing to suggest that there was no other suitable method of dealing with the Second accused other than sentencing him to imprisonimnt. I am respectfully of the view that had the learned magistrat addressed himself to the provisions of the Ordinance, he would have decided against the imposition of a custodial sentence. 0 S 3 It was for theso reasonsi that I set aside the sentences of imprisonm-iit imposed on the second acdused and substituted threfor such rxentence as would result in his immediate release from custy. / 1! / / DODOMA B. D. CHIPEA 26th Jun, 1978 JUDGE