19801210 TZHC Mbeya

,. • :-. - IN THE hIGH COURT 02? TANZJIA AT MBEYA APPELLATE JURISDICTION ;•. CRIMINAL APPEAl NO. 154 OF 197 8 (0RIGSINAL CRIMINAL CASE NO. 300 OF 1 978 OP THE DISTRICT COURT OP IRINGA DISTRICT AT IRINGA )•. BEFORE J. L. MALUSANYQ.pR RIDTMtLGISThATE NJ\flANUDtJ Im1TA •.. . ..... . . APPELLANT versus. . c• ç RESPONDENT • ... . J U D ••••• SiJ4ATTA*. In 1978 Miss Salme-Stel upvq4 to live at Iixabio, Iinga dot She was 1iy.ng together with her parents. SheTh her own room. It was in a house separate from , but close, to residence. On May 19 - at about 9.00 pm —Miss Steli 1oàke the rOom and. went to her parents? house. While: he there.. she heard a bang. The sound originated from the d.irection of her room. She decided to find out what had causeô. it. She rushed to the room. Shook was awaiting her. On reachJ..ng the rooml she discovered that the door was ajar. WhQ:had, opened it? She was to get the answer immediately.: She sw a man coming out of the room. The man was a stranger -ier. He was carrying a blanket .nd a bedsheet. Miss Steli 4j.d what was natural in the circumstances; she risad'a.n alarm. Several persons responded to it One of them was a leader of ten cells, one Mr Kastol • •.,.../2 z/o ICihonza. e found Nisa Sleli holding a nan by his shirt. The jian ithe appellant., in the prepent proceedings, He used to aee the..inai"at pornbe;.shops in the. village,. While holding the appellant, \Niss Steli was .aloholding a. blanket and a, bedsheet. Oir the, strength of the Information he.. gathered from :the .J.., including the fact that the , blanket and the bedsheet were heit property, the leader of ten cells re—arrested the appellant and., later, handed him over to a guardian of the law. The appellant wsa finally taken befor the district court of Iringa distrjat There he was charged with burglary, and. stealing coxitrary to .s 294(1) an1 265 of the Penal Code respectIvelyi .110 pleaded. not guilty. The prosecutor. adduced the evidence i.hve 'narrated. 'In his defence the appellantadeno pretence to deny visiting 0T11K SiXirt. Vi hi iends As to, wJataled1y hd arai-vd.; qn' hej. scene, I shall peridt the ppell.ait hi]self to , . . . taeiptie tr fo: th L;iz'J., .4t4t to at 5the' 1 mother raised an alarm that I was a thief. ie.e ix,.rThej ban toepie hexj was.j j IJ . decided that they frame me up of stealing il 1 om@thin as (they hd betepme badly, .;, So they put the becl4sheets and blanket appe1i.nt lVas eer1 IhØ.pcjij.1t t:E j ei 4 }j b the iie plead '• thdth eu c'xnpinttL4d tE' 1:! hates me," I •h;lvc, He did not give any reason for the hatred. The appellant called no ic-c': t '•_ii :u one witness, but the man's evi.enpe gav no different colour to the case.' ' ., . .... .. , .Lt'fr 4Z . i .) ' ..).. 1' - 3 - The tLearned tril rnagitrate reviewed the evidence laid. before him at some length. In the upshot, he arrived at the settled opinion that the prosecution witnesses had told him "the truth, the whole truth and nothing but the truth,." He acoepted their evidence entirely, With regard to the defence, he thought it was a moonshine, It raised no sane doubt in his mind about the appellant's guilt. He accordingly convicted the appellant as charged, and sentenced iin to a substantive term of tee years' inprisoriient. In his. neraorundunof appeal the appellant has attacked the learned nagistrate's decision from several fronts. I . do not think however, that he has raised any point which can, in law or in fact, be Used as a peg upon which to hang the opinion that he was robbed of justice by the decision he has impeached. It is tru?, as has been pointed out by the appellant, that Mr lCihonza is related by blood to Miss Steli. By itself that is no ground for rejecting his evidence. There is neither a rule of law nor a rule of practioe 4hich says that the evidence of relatives must be discounted because of their relationship to the victim of the alleged crime or to the complainant. If the evidence of relations were not considered as reliable then courts would hnve to fall back either on the evidence of enemies or strangers who would hardly have any business to be present at the -time when the offence is perpetrated. This court should not lay down a rule of evidence which the common and just man would laugh at. In any event, there is no provision in the Evidence Act, 1967, which authorises the formulation of a rule -4- whioh would make the evidence of relations irtadiaissible. Very ri&ltl3r, the wise men and women who sit in the Kariinjee Hall have not enacted that a court of justice is not at liberty to base a finding in a case on the evidence of relations. One prays that it will be a cold day in hell before they pass such an unreasonable legislation. While a court of law may base its findings against the accused - even in the most serious criminal case - upon the evidence of relations or of friends, for reasons which are obvious such evidence has to be approached with great care. It is one Df the human weaknesses to succumb to the teraptation to subordinate onets loyalty to the interests of justice to onets loyalty to a relative or friend. If the law discounted the evidence .of relations and friends many crimes would go unpunished, and in civil cases many an unjust man would triunph. If that were to happen, the man on the Uflâ cinibus would perhaps be tempted to echo Housman!s words in LAST POEMS: The Laws ... of man., He may keep that will and can., Not I I. a stranger and afraid In a world I never made, They will be master, right or wrong; Though CtheyJ are foolish, (they]are strong, And since .., joannot fly To Saturn nor to Nercury, Keep Cl] mut, if keep Cl] can. These foreign. laws of ... man, It is a temptation which the men and women skilled in law would find difficult to resist, it is difficult to feel any respect for a law which ignores the experience of mankind, and against which cotnon sense rebels. 9/..!.. aq; Jo sj et eej o. opu eru puno; oxe otim soAo -.M$ esoq. Lxsseoeu Pue xGdO-IcT s ç' jo swçj uto 0T4I. U1O.IJ ztJ oo. s ou uatlm exe trs uj 'eueTosuoo Tocpr 014 sts eoueuos tR, pS eq euçe 1100 T Motf 005 OW JO 0 311 014 .103 .0UU0 I l qxrquqA peupTao Tq uioxj spxj Aule dee.i ou pçp .u1ecI eqq oqi qc qnoq p.zot o Su s hIM I 62 UTTICOI-S JO 90110330 014 JO q.0octse.1 UT I.UO peq.eux q.uouiuosTJ&rr sqquom eieiq jo eotZeuos e .noqt qxTim .rtcj I s ees :sI .&q peqxosatd 3L61 s0 ouOWOS =TUTK aLfl. jo (fr fl1TjUçt1 014 sT .T Iwj jo .cmoo Swe Sq peonpe.x eq.ouuo .znq Jo 90119330 914 .103 POJLT000.1 .W[E3dd 014 tpçtM .ueriuosç.1cfrrç oe.zq jo eoueues ei .jo posoclsçp çpeed:s eq 'uyq. I 'uto edd 4%1 'aoueuea .supe,9v Tuaddv314 o. u.rrt. MOU 110fl.OTAtXO3 uTvSv Tvaddv 914 SSTU.ISTP PIflO!k I 'UOfl..1OSS suiadth 014 UT .T.IeU Jo efl.9eK oti 005 uo I 'SuTSnoo WTP 11843 !)OU eXS omq, e14 qL-tq Sus p[nol& S.10JMi oinog •esoo1rçtrzzo tlO.13 U0AO9j 30 14PTM 014 icq S.IeJJTp 'qçurp iTP' 11T!'L M k 014 14T 2 xe TTTMJ ATueToTJ;as 0U0ZaA S esn10 OU1T.1U y 0Sfl3 sum eso 014 114 4 euop S1t[ Ot( S'o 'S oq. u1I0dth 014 .103 MjaOMqsod v S' 0 1TX1J 95 sr i OoTdriTs ptrs e.tnd 'euo plutIrr.10 0 seso ouj,ee.1STp I '9Srn30 tU0tTZ1t q.sn suit eso sq edth? JO tiflpUr.1OU&U S1 U OOUOqUOS upooj 014 UT puno aq o. sT i eauo Wqse.19 ' T .19JtS110 s.uhTdde aqj pu q.T poe ee.1q.s -ç21?u puaO '0110 TOttTClT.10 0 90 asso 914 -L TT 21IOV 914 IY[flOt{S ftt!k Xt S1M 9.1q.S121EI p8tZX09 0.414 SS 081 Ue1T8dcI — • . 6 lag. One hopes that the appellant has been made to believe that he is better out of prison than in it. Reason and justice conand me, I think, to dissallow the appeal against sentence, too, The appeal stanã.s dismissed in its entirety /Th B e A. SAMATTA JUDGE. Delivered this 10th day of December, 1980, in the presence of Mr, Teenba, counsel for the Republic. Be A. SANATTA JUDGE. ' /