19980203 TZHC Mbeya

f. IN THE HIGH COURT O"F TANZANIA

AT MBEYA

ORIGINAL JURISDICTION (Mbeya Registry) CRIMINAL f.\PPEAL NO. 43 OF 1997 (From the District Court of Chunya District in Criminal Case Noa 316·of 1995) 1. HEBRON RUBEN ) APP ELLI\NTS 2 •. JACOB HENERICO ) Versus THE REPUBLIC ooooooo••········•·o••· RESPO~ENT JUOO E'-1ENT MWIPOPO J J.: The appellants who are two with HEBRON S/0 REUBEN as 1st Appellant and J1\COB S/0 HENERICO as 2nd appella>1t, are represented by the learned Mr. Mwakolo. They were charged and convicted for Cattle Stealina; C/ss. 268 and 265 and sentence':l to 5 years jail terms each. Both the learned Mr. Mulobzi, State Attorney for the Respondent the Republic and the learned Mr• Mwakolo don't support the convictions and sentence on the basis that the prosecution witnesses dL: not testify in court in person but had their statements to the Police tendererl as evidence, It is then unsworn Police Statements which formed the basis of their convictions. The other ~round ·for not su;,portins the conviction advanced by bcith learned Counsels from both sides was that the confessions of the two accused which were retracted later on when testifying in court should have attracted corroborative evicl.ence which was lacking in this case. The last ground f .')r the learned Counsels to support this a:ppeal was i:siven as bein,5 lack of sufficient evidence c,f i,lentification of the suspects. There is nothing wrow-: in law for all

prosecutions case to he proved by way of police statements made hy witnesses who are prevented from coming to testify in court for sufficiently good causes. Such as having left the co ..mtry for goo,:J. or for a long time, bein:-r, sick for a long time etc. But the wei:,;ht to be placed on such proof of the "'ase throw;h the wi tnesse' s police statements is quite minimal since the same police statements are not taken under both and the makers can 1 t be cross examined abouts if contents to verify then veracityo Such police statements should.be prod.uce:i to fill gaps in the sequence of the evidence rather than be the entire basis of proving the ch2xges against the accused. The persons advanced by the trial for admitting these ••••••o ♦ /2 2 ... witnesse's police statements were that the witnesses could not come to testify for there was no money to pay for witnesses expenses. This is a v,ood ~round for admitting into evidence a witnesses police statement. rrhe retracted confessions of the appellants pointed their fingers of the appellants at themselves as the thieves of the cattle since they retracted ever ha.vine; mad.e these incrim:foatinr; contents in their cautioned statement. There should have be0n a trial within a trial at least some corroborative evidence in support of the veracity of the contents of retracte~ confessions. Such corroborative evidence could not be found

in the police statements of the prosecution witnesses tendered as exhibits in court which incriminated the appellants. Since the crusial issue was whether the appellants were identified driving the 3 stolen cattle it was imperative for the witnesses who allea;ed to hnve seen the appellants with the stolen cattle soon after the theft to testify on oath in court and to be cross examined on it before beint; convicte,1. 1Ul in all, I too find that this wo.s a weak case for lack of sworn testimony of witnesses who ·anegeci. to have caught the appellants with the stolen cattle. Both their convictions for cattle theft C/ss. 268 and 265 of the Penal Code .are quashed. The sentences of 5 yenrs imprisonment for each appellant are set aside. The appellants Hebron s/o Reuben and Jacob s/o Henerico are to he released frc)m prison immediately o (Sgd.) 29/1/98 3/2/98 Mwipopo, J. Both Appellants :Rbsent. Mr. Mwakolo, Advocate for a~)pellant - Absent. Mr. Boniface: State flttorney present and holdin,; brief for learned J.dvocate Mr. Mwakolo. C/Co Mwakajone;ao Court: Judgement deliverer] in the absence of both appellants and advocate. Die,trict Re 0 istrar to execute immer}iately the orders of release of the appellants, E.L.K. Mwipopo, J. 3/2/98 is a true co::iy of the orif;inal judsement. '..,.···r·

DISTRICT RIDISTRAR