20171102 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (

ATMBEYA CRIMINAL APPEAL NO. 62/2017 (Orii Crinial Case No. 201 of 201 6 from the District COurt of Rungwe at Tukuyu) JAILY KASYUPA @ KATITI .................... APPELLANT

VERSUS THE 1.EPT.JBLIC ......... . . . . . . . . ......... . . . . . . . . . . . . . ......RESPONDEN'l'

JUDGMENT Date of last Order: 0210912017 Date of Judgment: 0211112017 A.F. NGWALA, J.: In the District Court of Rungwe, the appellant was charged together with his fellow James s/o Isaya Mwangata of the offence of House Breaking c/s 296 (a) of the Penal Code [Cap. 16 R. E. 20021. The trial court having heard the witnesses from the prosecution and defense side convicted the appellant of the offence of receiving stolen property and proceeded to convict and sentence them three (3) years imprisonment. The appellant is dissatisfied with the decision of the lower court hence the present appeal. The appellant complains that he was not found in the possession of the stolen properties. He says there was contradiction of evidence between PW4 and the 1st accused person. Page lof 7 During hearing of this appeal, the appellant being unrepresented told this court that he was convicted because he was connected with the 1st accused, a fact which is not true. The respondent Republic being represented by Hannah Kasambala, State Attorney resisted the appeal. Much as the appellant was not seen stealing but he was found in the possession of the stolen properties. The learned State Attorney went on submitting that the evidence of PW4 was corroborated by the caution statement of the 1st accused person as per Section 33 (1) and (2) of the Evidence Act [Cap. 6 R.E. 2002]. There was no contradiction in

the evidence. The prosecution case was proved beyond reasonable doubt and there was no contradiction in the prosecution evidence. The learned State Attorney added that there was no need of calling other witnesses because PW4 was a credible witness. PW4 adduced strong evidence• that sufficed to convict the appellant. Having so submitted the learned Attorney prayed the appeal to be dismissed. The record shows that the trial magistrate proceeded to convict the appellant of the offence of receiving stolen properties. The Section to which the appellant was convicted reads:- "S. 311 - Any person who receive or retains any chattel, money, valuable security or other property whatsoever, knowing or having a reason to believe it Page 2 of 7 to have been stolen, extorted, wrongfully or unlawfully taken, obtained, converted or disposed of, is guilty of an offence and is liable to imprisonment for ten (10) years." In his defence, the appellant told the trial court that:- "On 1611212016 in the evening hours one Onesmo, from Chunya while I was in Mbeya, said that had articles for sale. Onesmo with the Jst accused person said that they had articles for sale. That other per person had the TV. He was selling it at Tshs.80,0001=. I accompanied with the 1st accused, Onesmo said the TV was in Tukuyu. That defence by the appellant never touched or afforded any requirement in section 311 of the Penal

Code as above cited. The appellant never explained on how he was not involved in the offence rather than conceding that he was accompanied by the 1st accused.. The appellant is complaining that other witnesses were not called to prove the charge against him. It is crystal clear in criminal law that no number of witnesses is required to prove a criminal charge as per Section 133 of the Evidence Act [Cap. 6 R. E. 20021. Page 3 of 7 I Regarding the confession by his co-accused, it is a rule in Evidence that courts may take or rely on the confession made by the co-accused and put into consideration against the other person charged jointly in the same charge. However under subsection (2) of Section 33 of the Evidence Act (supra), courts are warned to convict a person relying on the confession by a co- accused. In the case of Hassan Said Nondo v. Republic, Criminal Appeal No. 126 of 2002, the Court of Appeal of Tanzania at Mbeya (unreported). It was held inter alia that:- "... the confession may be taken into account not only against the maker but also against the co-accused if the maker implicates himself in the statement." Applying this position to the instant appeal, it is clearly indicated in the cautioned statement by the 1st accused, the statements implicated the 1St accused person and the appellant. For the purposed clarity I reproduce part of the statement by the 1st accused

person:- "Nakumbuka mnamo tarehe 1511212016 majira ya saa za usiku mimi niliondoka kutoka nyumbani kwangu mtaa wa Makungulu hadi Tukuyu Mjini kwa usafiri wa gari na baada ya kufika Tukuyu Mjini nilipanda Noah hadi Kijiji cha Isabula na baada ya kufika huku Isabula nilikuwa pamoja na rafiki yangu anayefahamika kwa jina la Kasyupa s/o Page 4 of 7 I Kaini, tulifanikiwa kuvunja kibanda kwa kutumia ) nyundo na kufanikiwa kuiba TV rnoja yen ye rangi nyeusi na silva, mifuko kumi ya pipi na sabuni miche kumi na mbili parnoja na sukari kilo 23..." At page 10 of the typed proceedings the said cautioned statements by the 1st accused person were tendered before the trial court as prosecutor exhibits; neither the appellant nor the 1st accused objected the same to be admitted in evidence. It is a trite law and practices that once there is a retracted or repudiated confession courts have to seek corroborative evidence to the retracted statements. In the instant appeal there was no such a need as there was neither repudiated or retracted confessions that ought to have mandated the trial court to seek corroboration. This position was earlier stressed by the East African Court of Appeal in TWAMOI v. UGANDA (1967) E. A. 84 2 where it was held inter alia that:- "A trial court should accept with caution a confession which has been retracted or repudiated and must be fully satisfied that in all the

circumstances of the case, that the confession is true." All in all the arguments by the appellant comes as an afterthought. The appellant never made a defence in respect of the offence charged. He never disproved the fact that on the Page 5 of 7 material date he was together with the 1st accused person and they all participated in the commission of the alleged offence. For the foregoing reasons, I am of the considered view that the appeal lacks merit. The appellant was properly convicted by the trial court. Consequently this appeal is hereby dismissed. The conviction and sentence of the trial court are hereby upheld. The Appeal is dismissed. Order Accordingly. 4401P A.F. Ngwala * Judge 02/11/2017 Court: Right of Appeal to the Court of Appeal of Tanzania explained. 4XPAI(~ ' A.F. Ngwala Judge 02/11/2017 Page 6 of 7 Date: 02/11/2017 Coram: A.F. Ngwala, J. Appellant: Present For the Republic: Miss Benadetha (State Attorney) B/C: Sarah A. Mungure Court: Judgment delivered in court in the presence of the accused. Court: Right of Appeal to the Court of Appeal of Tanzania explained. A.F. Ngwala Judge 02/11/2017 Page 7 of 7