20070611 TZHC Tabora2

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION. (Tabora Registry) ;, (DC).CRIMINAL APPEAL N0.137 OF 2003 ORIGINAL CRIMINAL CASE N0.4 OF 2000 OF THE DISTRICT COURT OF KAHAMA DISTRICT AT KAHAMA BEFORE; .M.H.M. SEENENE - I Esq.' DISTRICT MAGISTRATE . "' JUMA S/0 LULANGALILA ...... ~ .................. APPELLANT (Original Accused) VERSUS THE REPUBLIC ........................................ RESPONDENT ·, (Original Prosecutor) ~ JUDGEMENT 26TH MARCH, 07 & 23TH MAY, 07. MZIRAY, J. The appellant together with one Mahona Mwengeka who did not appeal, were convicted in the District Court of · Kahama in an offence of robbery with violence and sentence to fifteen years_ imprisonment. The appellant is aggrieved with the conviction hence this appeal. .. : ' . The Prosecution case heavily and crucially depends on the evidence of three Police Officers. The evidence which mostly implicated the appellant 1s that of PW3 D/Sgt I '.•• / Athumani to the effect that he took the caution statement ( exhibit P4) of the appellant. In this statement it is alleged that the appellant voluntary confessed the offence. The version of the appellant i~ his defence is that he f, ~ gave the alleged confession statement under duress c1fter II being locked _up and intimidated by the Police to· admit the offence. The appellant attacked the Prosecution case to be weak after Jhey have failed to call as witness the victim of the alleged robbery. ,, In his petition of appeal, the appellant has challenged the trial court for admitting the confession which had been repudiated without the magistrate warning himself of the dangers to rely on that confession. In principal the appellant is stating that the confession required corroboration before being acted upon. In arguing the appeal Mr. Mkoba, learned State Attorney submitted that the confession made by the 2 " appellant was true and voluntary hence the trial court was justified to believe it. The trial court in its decision relied on the confession statement to convict the appellant. However, it found the appellant Ql:,lilty of a lesser offence of robbery and not armed robbery on account of the fact that the Prosecution failed to ~. produce evidence of use of firearm in the commission of the offence. As rightly observed by the trial court the Prosecution case crucially depends on the-: caution statement the " appellant gave to Police. The appellant has retracted it in defence by stating that it was involuntary. It being the case, the caution statement required corroboration before being acted upon. There was no evidence adduced to corroborate the evidence of the caution ,, statement. The trial court therefore erred to base its conviction in an uncorroborated statement of the appellant. Secondly, from the record of the case, it shows that the confession statement was admitt~d as evidence without first giving the appellant opportunity to say whether he objected to the admissibility of the statement or not. In my view, failure to afford the appellant such opportunity was an i . - .. incurable procedural irregularity which must have prejudiced the appellant. Thirdly, it was averred in the charge sheet that violence was used to one Rebel d/o Petro in the perpetration of the offence. But for no reason the Prosecution did not call this I Rebel Petro to testify and support this averment in the charge sheet. · Failure to caU this witness must have I• ,.. tremendously affected the case for the Prosecution . . On the foregoing reasons, I find that the case for the Prosecution was not proved beyond reasonable doubt. I i.I quash the conviction and set aside the sentenced imposed on the appellant. I order for his immediate release unless lawfully held in other matters not connected to this case. 11/6/2007 ,j Right of appeal explained. ~11. . Jf.~s.M I ~ JUDGE 11/6/2007 4 I