20000410 TCHC Dar es Salaam

,, ___ i TH.i.I: UNI'l'.i.W RJPUBLIC OF 'l'AN7..:iNII. IN THI~ HIGH COURT OF 'I<;JiZANiii CRIMIN;,1 .ii.PPE,.11 NO. 103 OF 1997 (OHIGIN;,.L i\10ROGORO CRIMIN/.L C,'iSE N0 .. 421/96) /,.KI&', .D,,UDI @ KINYj); •••••••••••••••••• iu>PELIANT vcrsu,s Tm~ JIG'PUBLIC RESPONDENT. ""_, ___ J U D GM ..,..-...:__, ENT., _,_.,.~_,_ _ ., ~ This is an appeal filc:Jd by the 3rd accused person one Akiba Daudi@ Kinye after he, and two others had been found guilty ,::md convicted. of an offence of i1rmcd robbery c/s 285 and 286 of the Penal Code, Cap.16 of the Laws, rsad together with Act No.10/1989 and Act No.27/1971 an.d sentencGd to thirty (30) years imprisonment and to be canned twelve (12) strokeso -The facts of the case was briefly that on the night of 21st December, 1996 the four accused :persons attack0d Ally Salum at Mlulu village and stole from him Tshs.4o,OOO/- and bundles of cigarettes worth Tshs.21,500/== all totalled at T.shs.61,500/-. In the caune of that stealing, the accused p,::rsons are said to have used violence to Ally .Salum by shooting at him and caused h.'iJ.;"1 t0 suffer injuriGs on his right leg~ They alsot•-it Mashaka Salum by using a _pa.."1ga and caused him to suffer cut wounds on his shoulders and at tho back. The four accused persons had pleaded not guilty and the case proceeded in full trial. The prosecution case wa.s that the 1st accused George Saidi Mondc @ George Bush was born and ;grew up c=,~t Hlulu village where his mother was still staying. He came with the other accused persons on that night and attacke~ tho complainant and stole from their in. He was arrested on the following morning just in the village when he came to investigate about the ,previous nights robbery. The arrest was due to tho fact that he had been properly identified at the previous night by the complainants. After his arrest, he made a cautioned statement to the police· where he disclosed the names of tho 2 other accuBed personso ,iictually, he led the investigating police· officers to whore th0 other 2cc31s,3d persons lived. All of the accu:::;.::d persons made a statei11ent to tho police and ,··hereo.s the :l 1st and 2nd D.ccused persons said tha.t they .)•JGre forced to make the statements, the appellant, (3rd accused) said that ho was forced to sign on the already written statemento After the learned Resident Magistrat,3 was of the settled opinion that, the fil~st El.ccusod ho.cl been properly identified by the complainants, D.nd that he made his statoment volunterily, and that in his statement be mentioned the other accused persons ;._rho, mo.de voluntary statemonts to tlE:: police, he found that the pro,socution had proved their caso beyond all reason::i.blc doubts and so he convicted i:hem all·as charged and sentenced them to thirty years imprisonment 1 with an order that they are crumed twelve strokcso rh0 3rd ac_cused felt thc'lt the trial learned Resident Magi,stro.to errd in convicting him and sentencing himo He therefore appealed a.gainst both conviction and sentence., The oth;::;r two .:tccueed pGrso11S m·a peacefully serving th:dr sentonces without any hope of change,. :From tho memorandum of appeal, it is the 4th and 5th grounds of appeo.l which can be considered to be grounds of o..ppcal as other grounds m·e just by the way a..n.d · the prayers to allow the [tppeal and qua:.:~h thu lower court 1 s decision and sentence o In the 4th gound of appenl, the o.ppellant snid tho.t the trial magistrate convicted him on thci fcwt that he was mentioned by the first accused whereby no conviction should bo based on tho evidence of a co .accased. In the fifth grolU.1d of npp..::,s.l, tho trial Re,3ident M?.gistr.s.te is accusod of basing hi,s conviction on D. co.ution statcmr.:,nt alleged to h:we beon mo.do by him. It is true) that the 3rd accused warc; not identiffod by any of t!1e prosecution witnesses during th0 cormnissi.on of the offence or a.t any other time. It is also true that the 3rd accused was firat mentioned by tho 1st accused in his cautioned statement and his conviction was based on tho two factors, thz,t he v.ra.s mentioned by a co-accused and that hiJ ms.do a cautioned sLttoment, admi ttint l,Q have taken part in the armed robbery o.ft0r he wo.s forcdd to toJr(i pa.rt by 1st accused or else he would bo killed.· ,, . ~ ;) I would first like to doal with the 4th grotmd of appeal that the 3rd accused ..-ms found guilty o.n .:l convicted on the strength of 1 th;0 confession of the l.st 2..ccused to the police officcrso ,Section ' 33( 1) of th,;; Law of Evidence ,~ct, 1967 givGs pow0rs to the court to convict a person on the confession o_f a co-accused, provided that the said co-accused is implicating himself to the commission of that offoncGo In this case, the, 1st accused implicated himself to the commission of the: offence which they -:::i.re jointly chargedo However, by the ,c3an1e section 33(2) of tho Law of l!Jvidence Act,1967, a conviction of an accused person shall not be based solely on the confession of a co-accused. This tnkes mo to th,~ 6th ground of appeal which the 3rd accused/appellant said that the cautioned stri.tement w2..13 not made by him. Hence he retracted it. The learned Resident Magfot:rat0 con,5idered this issue in his judgmont by being guided by this court's decision in R.Vo Rcymonds (1950) I [;.LL E.R. at 336 where it w-::-1.s said that there is no hard and fast rule., However, the general rule is tho..t if it is alleged that the confession was ma.de under pre.sure! , the question can only be s-ettled by considering the terms of the acc-i.:tsed' s state1mmts o Though that case is not binclir..g upon this court, no:~ the o"llbordir0te court 1 yet is ha.s n pursunsivo effect. '11hc trial court bcliGved that the 3rd accused person made the co.utioned statement to the police and that he signed it freely. He therefore acted upon it together with the confession of the 1st 2ccused :i.mplicr;.ting the 3rd o..ccused. lJ-.(J.der the circumstances, the trial cour"t did not convict the 3rd o.ccused'· solely on the confession of the 1st accused, but it was oo-Uplcd with th0 co.utioned .statomunt of tho 3rd accused himself which was believe,.,, upon by the courte Though it is desirable that a court· should look for corrobo1~ation in support of a retro.cted confei,;sion before acting on it, yet the court may- convict on retracted confession even Hithout corroborationo See tho Court of Appeal decision in Michael Luhiyc VR (1994) T.L.R. 181 • Further more, th-9 corroboration on this retracted confession could also be said th2t it had been corroborated by the cautioned statement of a co-accused. After the trial leo.rned Resident !-bgi,str.'.lte had taken other factors like th:; signo.ture of the 3rd accused in the stat,J1,1en'- -:i.fter the preliminary inquiry and th,:: details in the cautioned statement, he convicted the 3rd accused person. t • 4 'l'he conviction is also supported by the Republic and I donit see h ou I cc..n a lt er tha t rincungs o.f ·!.,n8 1 earne d ni,esioent n• '. . ' -, . t rate i'-1-.'.lg1.s L' who found the accu,scd guilty o.nd convicted him. 'l'he sentence of thirty yGo.rs imprisonment ancl the twelve strokes are provided as the Minimu sentence and the court ha.s no power to reduce ito Once on8 is found guilt},. o.nd convicted on a Scheduled offence, he is to s~1ffcr the coi1SGqucnce of it. Finally·,. the appeal is dismissed. on its entirety •. . -.. +·\-· 1 .. o 11 " i1{ .tfL~}t11() JTJ))JJ~ ---=--..-~. 10/4/2000 Coru...rn_ - ,, .H. 1'10.ncnto, J • .\bscmt - For th2 Appellant Mr. Mtii.rino. S/Ii. for th, Ifospondent .. cc - 1'i.za~ 'l'ho appellant - , is (}.'l,; Morooo·orc"., Dr1· .i: Sv''n. • a·. 0 w1· 1~.1. ,..)e no•cificd h ' of the: judgment., 10/4/2000