19840915 TZHC Arusha1

( IN THE HIGH COURT OF TANZANIA. AT RSHA CRIMINAL APPEALS No.219 & 208/1978 (From the decision of the District Court of Mbulu at Mbulu in Criminal Case 1,To.191 of 1976) GIDIr1NI UTAIA &ANOTHER ...."...w APFELIANTS Versus THEREPtTBLIC RESPONDENT J JD G N E N T CHUA 9 J. The two appellants 2 namely Washiwashi Gidanii and Gidawidini Utala-we—e jointly charged with c'tt1e theft c/s 268 & 265 ofthe pnã1 code it having been alleged that on the 16/9/76 they jointly and together stole 12 heads of cattle, the property of one Lohay Margwe. Uon conviction they were each sentenced to 5 years imprisonuient' wider the Ninirnun Sentences Act. Briefly the pro socution evidence was that on 16/9/76 the complainant Lohay Margwe noted that 12 of his cattle which had been under the guard of a girl ca.TL1ed Teresa Tiatla were missing. On 17/9/76.a search /wae oganized. By tracing hoof marks the complainant was,, able to reach the home—stead of Lianyoka Denginya (PW2). On being questioned about the cattle P72 said that the two apre1ants. had brought 6 heads of cattle on 16/9/76 which tIey intimated that they belonged to them and that they were \selling them. They then sold then to two Wanasai men namely 10.,msai Oiemuho j (PW3) and Nanangara Leke sa (11W4). Th'e 6 heads of cattle were recovered arid were identified by a articular 'braiid mark that was not challenged at the trial.\ In defence each accused made a sworn. statemctnt. The first accused simply denied the :theft whi.le tho 2\.rid acc'd sot up an alibi contending that on 15/9/76 he aad\been admitted at Endabash hospital but was allowd.to l\ive at the house of his relative Fante Gidiyao (i). ./2 Fan-be Gid 'eyao • Pante Gideyao testified in court'abbut'tbo second accused having lived at his house untilitho,21/9/76 but in cross examination let the cat oat of the bag by adiaitting that he was merely tying to:help-his reätive0 ther words he admitted: - hat he was lying. But the crucial äaostion which the t±ial court had to consider was whether it was safe to convict the to accused on thd evidcnc' of Manyoic. Danginya (PW2), Iarusai Olem4hoja (PW3) and Nenengra lakosa '(PV14),. Mrs. Lyimo the iearfied State Attorney, stated that the Republib was not supportIng the convitioi becu P712, PW3 & P714 were accomplices' whose evidence should 1ao been corroborated but there was no corroborationa those witnesses in fact accomplices? ho is an accomplice in law? Ratanlal and Thakore in their law of Evidence 14th Edition at page 294 define an accomplice as follows: U An accomplice is a person who has concurred in the..comIèioia of an offence. He is a guilty associate in crime or partner. Spies are not accomplices. A person who makes himself an agent • for the prosocutiOn'for. the.purpose. o,f disclosing •aAdaisovering:.the.comnaission of an offence, eith''before. associating with wrofigdoers or before the actual perpetration of the offence, is not •:::'an•accop1ice but a spy, detective or docy, whose ovide'xco does :'not,'roquiro corroboration, though the weight tbbe attached to it 'depends on the character of each individual witness in each case't " ;•, • In this caso.W2 claimed that the 1t"ac'cçisod:'was his friend and tht on 16/9/76 ho, the 1st accused, had brought 6 cattle to his homestead accompanied by the 2nd accused. In the absence of any evidence to show that P712 prticipod in 'the theft of the 6 heads of cattle or knew the; they were to1on.ho cannot be descibCd as an acccmpl Ice. But the search party having traced' the foot prints 1 f the cattle to his, house he was a suspectod,porson and threfore he had to 190k f or an explanation. similarly I in th case of P713 & P714 who were foufld with the cattle and. claid to have bonght them from the two accused they were pers with an interest to serve in that failure to acC(jrit as to how they cac by the animals,would have ids i5 their being chargod5 There are Qu±' a few questions wb 'ih raise 'suspiciou;about 'h.e en,ndct of P712. 5PW3 & P714. S • / Jhir I ,j4 Vhy for example did FJ2 welcome the two accused with their cattle at night without socking for some independent witness4 And why did PV13 & P74 buy the cattle without ensuring that an independent person such as a 10 Coil Loader witnessed the transaction. The three witnesses in my view had an interest to servo in that they could have boon charged and therefore it was dangerous to rely on their cvidence without corroboration. I therefore agree with the learned. State Attornoy that the convictions cannot'bo allowed to stand in the absence of corroboration but as explained above for a different reason from that givon by the learned State Attorney. In the result the convictions are quashed and the order of compensation sot aside. I note however that the appellants have long finished sexing their sentences'Indeed delay in this case has load to denial of justice. Copies of this judgment should be posted to them via the Primary Court having jurisdiction over the place called Masieda Daudi Mbulu which is their last known address. I, LC/VJ L.J.R. o}mA TUDGE ( 15/9/84