19860623 TZCA Dar es Salaam2

t.,~- _,;._,:;. _,_":' IN 'l'HE COURT OF APPEAL OF '1•ANZAN:I:i\ AT MWANZA ,; CORAN: MUSTAFA.t J.A.9 MAKAME, J.A • .And KISANGA 2 J.A. ;i CRIMINAL APPEAL NO. 79 OF 1985 1. JUM/, SHIJA @ SANDU @ CHEREHANI I. APPELLANTS 2. JULIUS PAULO@ KENNEDI f 0 0 VERSUS THE REPUBLIC • • • 0 a O • ... 0 0 0 • • o RESPONDENT (Appeal from the C:O!Jvic,.ion of ihe High~Cour.._ of Tanzania at Tabora) (Chipeta 9 J.) da,.ed ~he 10J.h day of Sep,.ember, 1985 iri I Criminal Sessions Case No. 63iof 1984 JUDGMENT OF,. THE CO'QRT MUSTAFA 1 J.A.: • • 1_ ' Ob or about 4.9,1982 ai Buchama Villag~, ,,, iwo suspec,.ed ~aJ.,..le J.hieves were killed by a group of vi1i~gers, members of t the Wasalama gro~p. The tWQ bodies were burn+. Some days la,.er J.he Police ca~e J.o know of J.he killing, ~P? a larg~ group of people - 300 +o 400 villag~rs were arres~¢d .... Even,.ually 14 per~ons were charged wiJ.b J.he_murder of J.he J.wg persons, and 5 of ... J.ho~e charged were alJ.erna+ively charged wi+h being accessories af,.er J.he fac~ of murder. Only 1ccused_ 1 Juma and Accused 11 Julius were conyi.c,.ed of murder, J.he resJ. being discharged on a nolle or acqui,.,_ed ( for lack of evidence. i I ~ Now Ac~used 1 and Accused 11 appeal ,._o J.his CourJ. from J.heir convicJ.ion of murder. ••••••••••• /2. / 2. The evidence against_Accused 1 was given; by_P.w.2, ~.W.8 and P.W.9. _P.Wo2 alleged LhaL be_saw Acc;used 1 SLabbing Lhe 4 <1 eceased wi+-h a spearo ~o Wo 8 SLaLed Lha.a.. he saw···:_Accu§ed _1 s.a..abbing Lhe dead body of one_of Lhe dece9 sed. _Pol"1.9 alleged '-ha~ he saw Accu§ed 1 as one of J..he assailanLs, buJ.. tn gour.a.. failed '-O idenLify Acc~sed 1o PoWo7 also alleg~d_J..haL he had recovereg 2 spears_from J..h-e home of Accused 1, bu.a.. .a..his evidence Joes no.a.. carry Lhe case any fur.a..hero I.a.. is com~on ground .a..haL all 1..ge prosecu=ion wiJ..nesses bad been suspec.a..s and had been arresLed and 1a.a..~r released by ~he Polic~. _Sgme had ~ven been charged iD cour=• Wear~ of Lhe view .a..ha+- LhE8e wi.a..nesses a~e somewha.a.. •Qin'-ed, and Lheir evidence ~ould require some SQrJ.. of confirmaLion gr_ corroboratio~ from indep~nden.a.. sourceso Learned S.a..a.a..e A.a...a..orney agrees wi.a..h J..his proposi+-iono There was a s-ca.a..emen.a.. _given by Accused 3 Jo!Jn Magidu, in WbO§e fayour a nolle was enL§r~o The tri~l cour.a.. useq .a..hi~ s.a..a.a..emen+- as evidence agains.a.. J..be appellan.a..s. The Sta'-emen+- of Accused 3 w~s purely exculpaLory. I.a.. was in no way_a co~feseio~. _I= was_clearly inadmissible as such. Fur.a..h~r, Qf.a..~r .a..haJ.. §La.a..emen.a.. was J..endered, Accu§ed 3 Joho did oot +-•sJ..ify,_ei+-h~r confirming or_denying i.a..~ Once_.a..his s.a..a.a..emeo.a.. is rej~c.a..ed, J..he eyidence of .a..he ProsecuLion W1J..nesses is no+- supporJ..ed by any o.a..her evidence. The trial judge held 1-haJ.. .a..be pro§ecy.a..ion wi-Lne:'?ses ~ere no.a.. :in any w~y accomplices. We J..hink J..haJ.. he wa§ noJ.. quiJ..e righL in .a..ha+- viewo These witnesses were somewhaL suspecJ..Q f) • & 0 • O / ... , t."' 3 Jf =h~ .1-rial judge had properly jtr~c.1-eq his IDind .1-0 . .1-he fac+- +-ha.i- .1-hese wi+-n~sses were somewha.i- .1-a:!,n.1-ed bu.i- never.1-hele§s, in view of cir~uws.i-ances which reniered .1-hei.¢ evid~nce cogen.i- and beyond doub+- .i-rue, he coulg perhaps bave convic.1-ed on such evidence aloneo He did no.i- sQ direct him§elf; worse, he relied on inadmissible eyigen~e, in .1-he s.1-a~emen.1- of Accysed 3 John, as lending support +-o +-he evidence of .1-he prosecu.1-ion wi.1-nesses~ We .1-htnk i._ is unsafe_.1-0 convic.1-_Accuseq 1 Juma on .1-he uncorr9bora.1-ed evidence of +-he prosecu+-ion wi.1-nesses, who were suspec+-s +-hemselveso The_same reasoning wo~ld apply to AccusectU·Julius. In his case .1-he only incrtmina+-ing evidence_agains= him is by P.w.s. The other evidence is +-he inadmissible s.1-a.1-emen+- made by Accused 3 John Magi&u,. In +-he circu~s+-ances we ~llow· .1-h~ ,appeal§ of bo+-h .1-he appellao+-s, guasb +-heir coovic.1-ions, se= a§ige .1-he order and I judgmen= of +-he +-rial cour.1-, and or9er_+-ha.1- .1-hey be released for+-hwi+-h unless o+-herwise lawfully' de.1-ained •. DATED at MWANZA .1-his 23rd day of June, 1986a Ao MUSTAFA JUS1ICE OF APPEAL L. M. MAKAME JUSTICE OF 1PPEAL R. Ho KISANGA JUS~ICE OF .APPEAL I, caacno/4.