19780619 TZHC Mwanza3

...,, . IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDI\:TICN, HIGH COURT CRIMINAL APPEAL NOe 344 OF 1977 ORIGINAL CRIMINAL CASE NOo 55 OF 1976 OF THE DISTR;ICT·. COURT OJ.c SENGEREMA DISTRICT AT SENGEREMA 12E.FORE MoSo KABIBI,' ESQo..l..,DISTRICT 1'11\GISTRATE FUMBUKA NDONDE o • • • • • • • • • o • o • • • • • ~ >.; •••••• • •• •·.no, • • ~ ·• • • • • • • • • APPELLANT versus THE REPUBLIC ••••• o·• • • • • • • ; • • • o . o • .,., o • • • o. .. ~ o ••• o o •• o. ~ o., • • RESPONDSNT CHJ.,RGE: CATTLE THEFT c/ss J65 and 268 of the Penal Code Cap 1'60 JUDGEMENT KATITI·, J. , ' The complainant Mashatiri_ Mwininga, · having lost two heads of cattle through~heft~ on the nigh~:of 28/29-1-19?6~;staged a search, ti~i on the 4/2/761 when he discovered and identified bJO cif them, at, the house ,of the 2nd accused, in Sima village. · The meanness of the prosecution's evidence, is such, that it is not known, ;·how the appellant, '1110 was the first' accused., came to b!= charg(:!clo Even ub to ihe closure of the prosecution~ urifortunately, not a mention is mad'~ about the appellant. The only evidence 1 characterised by shnllowness, is the report l:?y .2nd accuseq, regarding, hm1 he got' the two heads of cnttle, that, the complainant identified to be his pr_operty. PW2 says in this direc- tion and I quote:- ".We asked the 2nd accused how he got the cows he told u~ that, the cattle had been sent to him, by his friend of Karumo, we asked him, if he had reported the matter to the ten cell leader or myself, he told us that he had not done so! It was when he was arrested and taken to Police Station ••o•" It was after such evidence, that made no mention, not even remotely referring to him, that the prosecution closed its case and the trial Magistrate jumping Section 205 of the Criminal Procedure Code, administered section 206(1) of the Criminal Procedure Code. The appellant denied 8ithcr, selling to or sending the said heads of cattle to the 2nd accusedo But the 2nd accused, with an entourage of faithful witnesses, insisted on oath, that, they witnessed the appellant selling cattle to the 2nd accused. The appellant is challenging, the conviction resultant, from such evidence. What cannot be hidden on this record, is that, although, there wns no case to answer for the appellant, at the closure of the prosecution's case, the trial Magistrate went ahead to call upon the defence, to defend itself and on the basis of the evidence of the co-accused, the appellc1nt was convicted. l~e, of course, have no doubts, that, in a trial, whuth2r joint or not, an accused is entitled to give evidence for his defence, and in so doing, he is free to give evidence, which may exculpate, or, in a joint trial, to inculpate a co-accused - he is therefore in same position as any other witness - Ro Vs. ND,\RA s/o URUKI ( 1945) 12 EACA 84, R. Vs. PAUL AND MCFARLANCE ( 1920) KB. 183. In other words, when a person cho.rg,x.1 1 goes into a witness-box to give evidence for the defence, and has been sworn, he is in the same position as an ordinary witness, liable to be cross-exa·mined, und may even implicate his co-accused. 0 ./2 - 2 - ,- r And how saf(= it is, to convict on such evidence, is th8 question ~,.tA!o This question is very relevant, bec·ause·, first despite the prosecution's inv("stigativ(~ apparatus, the co-accused's defence witnesses, who were ' obviously prosecution's, could not- be avilable for utilization by the prosecution, secondly, when the 2nd accused was first confronted by P\J2, he made .no mention of th:= appella·nt either by name or any reference, for reasons, whctht~r or not known to him, excite suspicions o Why the 2nd accused failed to mention the appellant, at the first: .inst_ance, on 1·~)2/76, but remember the same on 29/1/1977,-is curiouso With the above factors in mind, suspicions against the conviction, and demands for being ce.utious cannot be avoickido It has been held in l"u\3ALE Vs o REPUBLIC ( 1970) HoCoD. Noo 24 7' that the· Court 'shouid·:ie··v(>.ry ·caJ··ti\'.)US ,- be-for~ ..b1s.ing a convic- tion, solely on tbe eyidence_of a co-accusedo It may well be argued, that, after all on top of the co-accused's evidence, is the evidence of the said co-pccused's defence witnesseso Before I proceed, -I · aknowl,~dge one thing, and that is, there is no law of· cvic1c;'lce, or procedure, which renders the evidence of wi tnesse·s· produced by or.:c.; accused, in;x1missible .against a co-accusedo But all the same, such evi- dence, is functionally inseparable, from· that o:f ·the accused~ that, S'..t::J._l<=:c1 such witnesseso I think, such evidence ·should be received, with as much·· caution, and suspicion, as that, of the accused that called them, first > because, such evidence invariably corne,-·to strengthen the case against th'l. co-accused, secondly, such witnesses, having not macl.e any statements to t;·, police, the co-accused may find himself in clifficul ties, in cont.t.0di·c_ti~:,.,. ~ them, because. of :1bsence of. any previous:l:y ..:i:-ecorcl.ed statement, thirdly, .,-- depending on the -order' iD, whicl1 the co~~Ccuscid::r~· charged' 'he may find himself, with no chance of making. apy ,stqtement, contradicting such evi..;: dence, and fourthly, what guarante~ 9-f 9099 jdi th: is. there",· in the c.::is,::: of such defence witnesses, all on one -mi:Ssiol'lo. . On· the wh0le; contrary to.: the v~ews held by Mr .. Rwechuh:gura, the l(!arned State Attorne;r; on.- t.ne legal. viabi~i.t.y of such evidence' I fihd myself unable to agr,ee-; that,,. it is safe,".t6,uphold such a·c·onvl.ctiono . I :must allow: this• app.eal, .. and so it is., l'.h~· conviction is quashed, and sentence · and any ord~r related t;o the same ;~~ asicle.o·. The appellant, to b12 r2lE::~i~ed immediately, unless otherwise legally helct.· - Delivered this 19th day of June, 1978;,\ · ., _; . ...., . , . . • ~.,\~J'v~ • J E. W. KATITI '. JUDGE I .... . . -~ _ . ~: -( -.:;.,- . ~-' .. :.;