nyamweru another vs republic 1982 tzca 5 31 may 1982

Lk i'Hcj CwUi\T Or' a PPK a L OF TAN^A.nI/ aT 'l)jiix iiS JAIjAaM CORAH; Mustafa, J. a . , Mwakasendo, J.A., and ^akame, J.A.) CRIMINAL APPEAL NO. 27 OF 1981 BETWEEN K YAW/VE RU NY -.GALI APPELLANTS sWii.;.BU k i ^ o m b a A N D the re p u b l i c RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukobn, Y.Rubama, J. dated the 8th day of January, 1981, l n Criminal Sessions Case N o >38 of 1980 J U D G E i-l E N T MUSTAFA, j.t. ovlr P°rsons wore charged -..-ith the murd.T of tho deceased; tv:o were convicted as charged and two were ac-'pitted. ihe two convicted Wti': respectively 1st. accused and 4tn accused at the trial. We will continue to call th-?n> 1st accused Swaibu and 4th a-.-used iiyam-veru at tnis sTo c„.. /ic uions i.ere b.-iscd solely on the; aliened confession to th'" lin'j the 4th accused. P W .2 3ryson stated that ho heard the 4th <ccuf,ec t-11 how he, i.,-. »th accused together with the 3 ot’ .iz:: co-accused, killed th,; deceas'd and how the deceased was buried na’:':c., with the club and rope used in killinc the deceaseds At the time o:J coRt..o„.ii/n, the 4th accused was at the scene with other villagers and he was being questioned from about 9.00 P.K. to 2.00 ,t.H. the fol1 owing morning„ However, PW.l who, according to PW„2 Bryson, was with PV,'.2 throughout, did n.t appear to Have heard any confession by the 4th accused. pw.2 liryson also said that a militia man, Nestory, was not present when the 4th accused made his confession. However, 0tf.3 Detective Constable Charles, testified that N*story ^ told hi* ^.at he, i.e. Nestory, was present when the 4thaccused gaie details as HO how they killed the deceased. "he trlal judgs; accepted the evidence of PW.2 Bryson and held thzt th, confession was made by 4th accused a - the confession implicated^ Jl1 ti',° °th r 3 C°~aCCUSOd' Th* trl--1 I-'*** ->lso hold that the c » » ^ S - . W io(jl_ . J s c=^ — (u^o A—Try— a- _ 2 - Howevr r, we cannot discount th 3 •'•vidence of iV. 3 when he stated that lie story hid told him thst he, i.o>. Ne story was present wh-.in the 4th accused confessed. Nestory himself gave evidence as DW„5, but he was declared hostile and we will ignore his evidence. We cannot say with any conviction that the confession was made in the absence of Mostory. We think that it was quite possible that Nestory was present and that P W .2 had overlooked that fact. The confession of 4th accused is therefore inadmissible under Section 27 of the Evidence ITestory Act as £^. is under the rank of n corporal. However, in terms of section 31 of the Evidence Act, certain fnets were discovered in consequence of the information received from 4th accused. The 4th accused had stated that the deceased body was buried naked, with a club and rope near hin. When PW.2 and other villagers dug up the body of th ? deceased it was found to be naked and a club and a rope were found by the deceased's side. This part of the confession was admissible. Only a persop actively implicated in the killing of the deceased could have knowledge of these facts. The deceased died as a result of a fracture on his skull. The 4th accused had alleged that the prosecution witnesses had told lies against him. In our v i e w , the 4th accused Nyarnweru must bo implicated in the killing of the deceased aB otherwise he could not possibly have icnovn of the dece-sed being buried naked with a club end a piece of rope by his side. We think that his conviction for r.urdor is jurtifie . end v;e dismiss his aoreal. As records 1st accused Svnibu , the only evidence ega: st h: :T1 a. the ineen.issibie confession of 4th V’: is th: f ore :io evid-jnca to convi ct~. him. We j U g " ’ , quash his nv ic i:ioe S«-:t ferf^er.ce of death 1 c-n hin -~nd crier - t he f^rtSwith unless afcK^rwif ■■tai:~■■■■d. 31s£ ay of May, 1382. ii, i.J3 ,'a FA JUSTICE OF APPEAL X..’-L.M. . M1 'i.lKASEWDO JUC -'ICE Of APPEAL \ L.K.. MAKAME JUSTICE OP APPEAL ? cerjbi¥i.;'4h?.4| thipfis a true copy of the original. ■*/