19820531 TZCA Dar es Salaam

'( f ~rvt-1, Ii~ 'l'Hr_; COUr<:I' OF APPEAL OF TANZ!UIA .• ? ,\ T DAR ES SALAAM "' ·•.I - (CORAM: Nustafi:i JnAo Mwakasendo J.A. a CRIMINAL APPEAL NOo27 OF 1981 BETWEEN 1-.:YAMWERU NYAGALI j~ 0~0000<..00000CIOO . APPELLANTS SWAIBU KILOMBA A ND (r1➔ s RE:PUB LIC ,, 0 (J O O o c o o ,., o o o C') o o <> o o ~ c o R:2; SPCNDENT (Appeal from the conviction of the High Court of Tanzania at BukobQ, YoRubarna, Jo dated the 8th day of January, 1981, i n Criminal S".!ssions Case Noa38 or 1'980 J U D G E ME N T J;'[USTAFA, J - A, Four persons were charg"·d ·,Ji th the murd2r of the deceased; two Were • t e d as c.h ar-ge d an d t v;o were acq·1 1.· ttnd· conv1.c · -. " "'1hE.'. two convicied· were respectively 1st accused and 4th accused at the triaL We. will "i continue to call th""rn 1st accused Swaibu and 4th a~::used i~yamweru 2t this app'3alo 'I'h•.~ cs:1victions were based solr!ly on t)1e all.:•ged confession to the killing by the 4th accus-?.do PWo2 3ryson stated that he heard the 4th accused tell how he, L ~~" 4th accused together with the 3 oi..::1:::;~ co-accused, killed the dece2s2d and how the deceased was buried n~:,~, with the club and rope used in killing the deceasedo At the tiiw1 o:c ~ the confession, the 4th accused was at the scene with other villagers and he was being questioned from about 9.00 PoMo to 2.00 ~oMo the following morningo However, PWol who, ·according to PWo2 Brison, was with P~.2 throughout, did net appear to ~ave heard any confession by the 4th accusedo PW.2 ~ryson also said that a militia man, Nestory, Wes not present when the 4th accused made his confessiono However, JWo3 Detective Consh!ble Charles, testified that Nestory lmct. told hi!n '.:::"1at he, ioe ■ Nestory, was present when the 4th accused ga~e details as to how they kill~d the deceasedR The trial judge accept2d the evidence of PW.2 Bryson an1 held th2t the confession was made by 4th accused an4 fhe confession implicated all tliE~ oth-2r 3 co-accus:?C.o Toe·~ t.i:-L:!l j-:..:-:!.qe ,)lsc h·:J.cl t:vit t'.,e c-rrn"fvt:.·S··i'u~ ~ 2 Howev,.::.r, we cannot discount th2 ,-,vidence of ly;-. 3 when he stated that I~estory h,d told him th3.t he, Leo Nestory was present wh-2n •:he 4th accus~d confessedo Nestory hims?lf gave evidenc~ as D~.5, but he was declared hostile and we will ignor1-: his evid,)nCeo We cannot say with any conviction that the confession was made in the absence of Nestoryo We think that it w,1s quite possible that Nestory was present and that P\.tlo2 had overlooked that fac:t. The confess::-on of 4th accused is therefore inadmissible under Section 27 of the E:vidence Uestory Act as /_. is under the· rank of u cnrr;oral o E01:1ever, in terms of s•:~c'.:ion 31 of the Evidence Act, certain :t"lcts were cliscover·ed in consequ(~nce 0f" the information recpived from 4th accused. The 4th accus~d had stated that the deceased body was buried nake~, with a club a~d rope near hirno When P1/Jo2 and other villagers dug up the body of th,~ deceased : it wv.s 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 persofi actively implicated in the killing of the deceased could have knowledg~ of these factso The de~cased died as a r~sult of a fracture on his skullo The 4th accused had alleged that the prosecution witnesses had told lies against him~ In our viev..r, the 4th accused i'Jyamweru must be implicated in t:1c killing of the dece~s<~d 013 otherwisr.~ he could not possibly havf, i{:1.0\!11 of the deceased being buried nak~d with a club and a piPC~ of rop2 h~ his side. We think that his conviction for nurdcr is ju~tifi9~ 1nd ~o disDiss his appeal. the inadmiss~ble confession of 4th accLs~d. T~0r~ is th~r~fore ~o ii. i•-1.JSTAFA JU~'.'.:'ICE OF ;,F'PE.:i.I, Y _. :•1-.. M.•. MI. ,KhSEi~DO Jl1S-~ICE OF' APP:::1\L - . L. J.;:. Mi,KM'!E JUSTICS OF 1\P!'SAL a true copy of the original. I