Hemed Mkondya Another vs Republic DC Criminal Appeal No

IN THE HIGH- COURT OF TANZANIA AT MBEYA AI-FELLATE JURISDICTION (MBEYA REGISTRY) DC CEIMIK.iL AIFEAL NO. 10 OF 200^ (Origo from the District Court of Mbozi District at Vwawa Criminal Case No#66 of 1998) HEMED MKONDYA ) 2.' SKADRACK SAMSON ...... A1TF&LANTS .VERSUS THE REPUBLIC.. ..RESEONHglNT JUDGi'iJjNT MACKANJA, J., The appellants were convicted of arraecx ronoery c/s io o , \oy of the Fenal Code consequent upon which they were each awarded thirty years of custodial sentence. The first appellant was aggrieved by the conviction alone, while the second appellant ccmr'lains against both sentence and conviction* When the appeal was called for hearing the first appellant made it clear * that he confessed to having committed robbery because no arms were used in the execution of their criminal enterprise. The record shows that on 13th January ••* v 2000 the fiirst appellant pleaded guilty to all seven counts when he said this to each of.those counts;- ;,It is true I committed the robbery" ► He was reminded of the faets which were narrated during the preliminary hearing in which the Republic alleged that the preliminary hearing to which he raised no objection* In fact the first appellant entered his plea of guilty after he had heard the testimony of Hamisi Mwamengo (pW*f) , Christopher Siame (PW6), Ge.ai.ence Simbeye (PW7) and FW8 swore that the robbers were armed with a gun and a machet3 ^ FW5 stated categorically that the first accused, who now appears as the first appellant , had a gun* In these circumstances I have not the slightest doubt that the first appellant1s plea was unequivocal. He knew to v/hat he was pleading, seven counts of armed robbery. Therefore, his appeal lacks merit. The Republ’ (■ has declined to support the conviction against the second appellant, Shaclrack Samson* Mr. Boniface, learned1State Attorney, submitted against the second appellant is that of FW2 and FW«10. As the learned State Attorney said, the testimony of D/C Saidi (FW2) was^hearsay as it was based on an account he got from a third party who was not called to testify. On his part D/Cpl* Waziri (pW.10)'recorded‘the second appellant’s caution statement had it admitted in evidence in a. proceeding- dn which the second appellant was not given an opportunity to comment on it. As it- transpired he complained that FWo10 extracted the concession through"torture, which rendered the entire confession devoid of any credible evidence, I am-at.-one with Mr, Boniface, learned State Attorney, In the result, the appeal by Hemed Mkondya, the.first appellant, is dismissed in its- entirety*- conviction and sentence are upneid, .un tne.otner nand, tne appeal by Shi^ck-Samson, the second appellant, is allowed. Convictions-on all the four counts, namely, the first, third, fourth and sisefch counts of which he was convicted, are quashed. The sentences thereon are set aside,. The second appellant, tne said snaracK oamson, is set iree unless ne oe further detained on some other legally justified, grounds* Delivered. Sgd: J ,M c MACKANJA JUDGE 11/ 8/ 200^. 1st Appellant: Present 2nd Appellant: Fres'ent