19790208 TZHC Dodoma4

IN THE HIGH COURT.OP TAIZINIA I- AT DOD OA W . ,. CR11 'IINAL APPEAL Ns. ill OF 178 (Original Criminal Case No. 4f, of 1978 of the District C ourt of Mpwapwa .at'Mpwapwa) Before: A.N. Sanga, Esq., District Magistrate KIFUTU NJSi\NGA . ,...... APPELLI.NT versus THE REPUBLIC . . . . . .......RES011DENT UGMENT 1ONATHi1i J. .,. Before the d.istrict court were the. ',opdflant and anbther person charged jointly with arson. The . other accused was acquitted but the appellant was convicted. OIl tO ch:argc) and sentenced to 3 oars' imprisonment.. He has ap'oaled against both the conviction and. sentence. S The house of 'Pw. 1 a primary school tcachcr apears to have bcon sot on fireon thcmatofial niht It was the prosecution case that that had bytho, two accuiiod. That claim was based on the evidence of Pw.2., a boy agd nine years who said he had seen thorn set the house on fire and on a conI'ossion by the appellant in which hesaid the had : boon hired by the other accused to burn down the house. The appellant in his defence flatly denied the offence and said the complainant was falsely implicating him following a charge by the later that the appellant had been making bye aproaches to 1ai girl—fric-nd' thd a warning that he might retaliate through Pw.3, the ward secretary before whom the alleged confession was made. The other accused, for his part, testified he had not been in the village that night, so he could not have committed the offence. The second accused was acquitted because there was no evidence to corroborate thQ account of the young boy. His evidonsa was that, that night t about ton o'clock he had coma out of the house to pass water when he saw th_ accused persons setting fire to the complainant's house about 20 paces away. The Lower court found this account corroborated as against the appellant by the evidence of Tha-.3. According to this witness, he had interviewed the apeeliant in the' prscrco of the complainant and other coplo, whereupon he confoeoc•dhe and the other accused had together put the house on fire. Pw,3 appoars to have duly recorded this confession. - 2 - The appellant in his petition complains he was beaten up to extort thç.confcssion. It is always the. duty 4•. of the prosecution tnprove that a confession it oek to rely on was voluntarily made. There is no eviLerce, however, that the apoollant gave his statement voluntarily to the ward secretary. On the contrary, indications arc that the confession may not have been voluntary. For, when on the day following the incident the witness interrogated the appellant the latter flatly denied the offance and the witness duly recorded to that effect. He again interrogated him on the next day and at firstthere, too, th appellant protested his innocend. iowovor, at the very end of the confrontation. he appeas to hve yielded when he said "1 will .now toll the truth, that is, I have confessed I burnt the house - so tdo did my coIlaguo. My sign ture," He had persistently denied involvement even under persistent pressure to oc.mt,and the final surrender could hardly be soon to be voluntary. At wOrst, thf:foro, the alleged 'S confession should have been excluded. At best, it was a retracted confession, in which ôao thor had to be c corroboration in order to act on it. The evidence of the young boy, itself nec :corro.bbrt-ion, could not have provided sufficient c orrobrtion. In the end, I am unable to aoo with the Republic that the conviction was based on sufficiently reliable evidone and, giving the appellant the benefit of doubt, the conviction is qiiashod and the srtcnce sot aside. Ho should be released from custody if he is iot ot.herwisC iLwfully hold. Delivered in open court this 8th day of Febreary, 1979. / 1 P. M JOiTITH1\T JUDGE 0