19861124 TZHC Dar es Salaam

... IrJ T:-ZE h-1.GL CCul-1T OF TAiJZANI:.t.1. hIGH 0vU.ttT C!\IMlNhL Af'.l:'.l!AAL Nu • .56 01'' 1986 v.1:tlGIL'lAL <.adhII~AL Ch.:)!!; Jll(J. '96 OF 1986- UF T:ti,c; JJli:>',L'!tlCT CuU.HT vF !LALA lJl.:;,TRI<.;T AT h.IVUKOhI 15efore L. HaGolwa J:.:sq • .lJistrict }111agistrate. liAMj'l'Al'l MSUh.tJ ············••000000•• Al'PELLANT versus 'l'li.c, Uld'.J:1:.1) iu:..l:'UBLlC ••o••••o•o••oo ■• RBbl-UMJENT J U 1) G E M E N T l The appellant Danstun Msuku, Kennady Ngcwi and Salum Maganga were c~arged with burglary and theft c/ss 294 and 265 of th& penal code. The appellgnt was conNicted as charged and sentenced to five years imprisonment in the first ~ount and one year on the 2nd count. :;ientenc:es were ordered to run concurrently. 'J.'he second accused at the trial Kennedy hgowi abscon•ied and the case against him wc1.s ordelied to proceed under section 226 01 the Criminal Procedure Act. lor the purpose of the record he w~s convict-~d. ~he third acc~sed balum Ma&anga w~a acquitted. '.J.'hi:S ap.i:'eal cos,.corns only iJanstun Iistiku. The facts of the case wvuld appear to be straight forward. un 11/1/1986 Benson Makuri (~w.1) locked the door of nie- room after shifting part of his personal belongings to his own house. He had been then a tenant. he left Sl)me of his belongings inc:~uding a refriga.i-ator, a bookshelf and books in h.is ro.om. He spent the night out of the room. When he came back on the morning of -12/1/86 to rmo•re the Jitine.ing items he found a crowd of people and noticed that the door was 'broken into and bis belongings he left behind missing. he made!reiort to the police~ he later identified ax·re:tri 1gerator and a bookshelf as his. The refrigerator was found with the second accused at the trial and the book.shelf was found with thEI third aecused who was acquitted. The 3rd accused named the appellant and second accused as pe.;-:-son who brought the bookshelf to him. The a;ppellant has raised the i.tef'ence of alibi. The if.sued in this appeal is• ·whether the appellant hhs been proved to the burglar and the thief. I .- ... \.._ - l ..:i· !"· r ::,u·· .... :1 .:. ; rJ "-" ·:· : , ·r ·... ··,:··. .... 2 Mr. Komba learned counsel ttaa submitted, and rightly so that the only evidence against the appellant is that of ~alum Maganga who is a aq-accused and as such there was·need for corroboration. He submitted that there is no corru';Joration in t'his case. In law the evidence of an accomplice does not need corroboration. But as a matter of practice, accomplice evidence should not be acted upon in the absence of corroboration unless the court has warned itself of the danger of acting upon such ~ncorroborated evidence. In reviewing the evidence against the appellant the learned trial magistrate seemed. to have accepted the evidence of the 3rd accused who mentioned ~he appellant when he wus arrested by the police and he stated. 11 1 have seriously warned myself on the evidence of 3rd accused agaisnt his co-accused persons and taking into account the whole evidence in the c~se ~nd.having observed the witnesses testify before me I am made to believe this 1st accused was involved in the transactions of burglary ahd steeling. 11 The trial magistrate is entitled and better placed to dr&w conclussion on ' ..r the credibility of witness. He has the opportunity of seeing and li hearing them. An appellant court would not interf~re unless it is satisfied that the trial court h&s proceeded on wrong grounds, I think, as submitted by the learned state attorney the trial magistrate was moved by the statement whicp. 3rd accused had ruade to Police. Nothing · was found with the appellant to connec~ him with the offence. The appellant stated that he left for Bunju on 8/1/1986 and returned on 18/1/1986 when he was told by .his parents that pCJlice wanted him, and wact himself to the police · ;..:.. ·., where he got a:-rested. A buril&r and thief would not have sent himself to the Police.. The· conduct of the appellant tends to show that he was not the burf;b.r and the thief. There was another defect in the judgement of the trial court and this foms·s-grounct, of appeal th~t the trial magistrate failed to consider the defence of alibi. In his defence ~vidence which he gave on oath he stated that he left his home on 8/1/1986 e.nd returned on 18/1/86. Philip. Mkupama (DW.2) step-fathe.·:r of the appellant has corroborated this fact.I~ his judgment the trial magistrate diq not address his mind to the issued of alibi. It was the ,duty of the cc.urt to make a finding if it believed what the appellant has said is true or not, and if not true it raises any doubt, however .alight, in tlh.e prosecution case in which case the accused should be (ic::quitted. Jtnd a,s the learned trial magistrate failed to consider the clefence of alibi raised by the appe- llant it is not possible for this court to c@jure what would have been his decision if he had addressed h:i..s1 mind t(,' it. ~t was therefore not ••••••••••/2 I r '., .,· i-'· ;;,! • i. - 3 - surpri~ing that the ~epublic were reluctant to support the conviction .. I-n the result the appeal is allowed, conviction quashed &Dd sentence limposed is set aside. It ,is ordered that ·the appellant be released from prison unless otherwise.lawfully held. . •, .. · ~OTO ' :-% JUDGE l>ated oa 24th November, 19_86· at Dar es Salaam. DAI< l::s SALAAM 24th ~ovember, 198! / L / / ·!.f(f;;:r · ........ ....J: ~· I _.y.· ·"I, . r· ., ...