19820927 TZHC Tabora

711 THE !Ii COU OF ANPNIA AT TABORA APPELLATE JURISDI'PION (Ta200ra Registry) • (1w) cRIMINAL JPPEAL NO 127 OF 1979 OI'INL CRITTINAL CI$E NO. 155 OP 1978 OF T47 DIg?RICT COUi' OF MASA DIC3TRIcT AT i1iSWA BEFORE ¶-1ILOGIL E'., DIIT MA 1 I3TRATE .S....APPELLANT (Original A caused) VERSUS THE R771JiBLIC. . . , . . • . . . . . . . . . . . . . . . . . . . . . .RESPO1IuIT (Origin1 Prosecutor iRGT: Stealing by Public Servant Contrary to Seti4 270 and 265 of the Penal Code. J U DG M E N T CHIPETA. J. The appellant, Robert Mohamed, was charged with and convicted of the offence of stealing by public servant c/ss 270 and 265 of the penal code, and was sentenced to three (3) years iLlprisonmant. He now apDeels. In brief the prosecution's evidence was that at the material time the appellant was a mechanic foreman in Qamorks at I'llaswa. As such foreman, —badqgveral assistants workin under him in the 3omworks garage, among wham was one Aiphonce Jum7i (P.w.2). appellant One sunday, the and several of his assistants had to go to th ': garage to repair a lorry which was urgently required. The following day, a motor starter of a tractor in the Q'orks yard was found missing. The District Engineer then celled a meeting of all t_. staff, 49inh meeting was attended by the appellant and PW.2. At that niecting ovary—one, including P.1.2 and the appellant, deiüed 131 knowledge of the motor starter. The mettar was then reported to polioe and the aepellant •ard P.1.2 were arrested. It was thent P.W.2 said that he had seen the appellant take the motor starter into a lorry in which both P)2 ani the appellant had driven out of the yard. That was the only evidence agaifist the appellant. - ...../2 -2- As pointed out above, it is in evidçnce that ?We2 had his1 a suspect and that he was, in fact, arresto.. It was only after P.W.2 had made an extra—judicial statement to a justice of the peace, in which he apparently implicated the appellant and exculpated himself, that police released him and made him a prose ution witness. In the circumstances bearing in mind. thit 1,72 was throuhout aware . 7 of the circurnstance in, vhich the motor starter disappeared and yet chose to deny any knowledge of it and since he had as much opportunity as he appellant to steal the motor starter, pblice were right in treating P.W.2 as one of the 3uspects. In my view, therefore, P.W.2 was an accoplice in the circumstances. - Although the evidence of an .accmplice requires no corroboration in law, it is ai principle of practice, based on judicial wisdom, that the evidence of an accomplice ought not to be the hsis of a conviction unless it is. co oborated by reliable evidence, The uncorroborsted evidence of an accomplice can only be the basis of a conviction in exceptional circumsa— - nces or, to put it differently, whbre it is so cogent and reliable that a court would, after warning itself, be satisfied that it is safe to act on it. (see Mrjaria 1f.R., (1972) E.A. 10, 16). In the instant case, te evidence of P.V.2, in my view, does not meet the above test, and there was no evidence to corroborate it. For these reasons, it would not be safe to sustain the appellant's conviction which, incidentally, the Republic declined to support Accordingly, the appellant's conviction is hereby suashed and sentence set aside. If he is still in custody in this connection, the appellant shl be released fortight unless otherwise lawfully detained. if B. D- CHIflT'A JTTDE Delivered in open court at Ta'qor this 27th day of September, 19 32 (1 d' B. DCHIP'TA, JUDGE Appellant: absent and. wirepresentecz Mr. Chaila: State Attorney fro Republic, -