19780224 TZHC Mwanza

IN E-TE HIGU COURT OU TAfZLJIA AT ,jV7AUZA APPEIL.LTE JURISDICTI ON i.IIGII COURT CIIT YI PPZAL O.179 TD 10 OF 1977 ORIGINAL CRIhIITAL CASE iTO, 403 OF 1876 OF TitE DISTRICT COURT OP DUTOBL DISTRICT AT BUUOBA Thf ore S. lB. i'r• CJL IiIO Esg., RSIDITT N GISi2R'E VENDELIN JOlii and i'TTDICTO. ANLSTZI. . •• • .,.•. ,• APPEtWTTS (Original Accuseds) Versus T I'lI ILkU3I;IC • . . . . . . . . • . . . . . ................ . 1SPONDEI T (Original Prosecutor) CHARGE: 1 s t Count: Store broadng c/s 295 (l)(2) of the Penal Code. .2udCount Stealing c/s 265 of"thePejial Code. J U D G IF Ij̀ IN TI LTJGLI'LTGTRA,J The appèlleri'ts, Rendelin John and lBenedicto .Liastazi Kv7esiga1o; were convicted.' of storebreaking and scaling c/s 296 (1) of the Penal Code. They werb sentenced, to three years' i.uprisohent each and th?n appealed here. Originally they. had been oi -itly 'charged with one Pereus Andrew who absoaded at the close of the' prosecution case. I:b had been alleged that th three broka 'in't;o the store of Nagondo Ilospital in Bukoba on the ni.'ht of 2 to 3 April, 1975. and stole several itei:•s .inçludind •tUo packets of powdered The breakihg and the theft we're' 'ot in 'dispute. The question is whether the appellants, or any,, of thea, participated in this c±'i.ni;aal deed. . On 13 Nay 9 1976 the house of Undelin was searched. Nothing significant was found save ,f or a quantity of

powdered 2 nill: in a sn:tall' tin in the cupboard. The search was"' cond'.cted by No.B9060 B/C Hend (P75) in the proscnöo of Sister Narita Petro (PJ1) whu was the Storeiceeper ct the Hospital, and. Joseph atimzi. (DU1) and Yohana Thoraas (DY72), the la ter two being 10-coil leaders. 1Jendelin exp1ai'od that the ,ailk. had been brought by his viive frori Kagondo Cflinic foy 'b o c' i1i- oe evcn no oe a Clinic Card to hc e Loct But Sister Narita naintsined that the .silk' vias of the' stolen tye which. waq not given out for children. Thereupon, D/C iXened and Sister Narita wont to th Nospital to ascertain the identity of the .cülk leaving VTendolin and the' two call loaders 'behind. Th following day \lTonclelin was picked up and re,:anded in custody. Ea the night of' first Juno, 1975 anoth'r thoft tooL place at Nyanigaju villege in the sa:c area. Coffee was anng the stolen items. It ;as alleged by Burchard Nilaya (P.74), a cdl leader and 'ailitiaivan, that a trail o coiioo led towards Benodicto' S Shal:a. :Tenco, Burchard and a grouo of villagers boseiged Lonodicto;' s house who allegedly warnd t7.:o off. They roained there guarding throughout tilo but in the .raorning CflCd:LCi,O had escaped. They therefore decided to arrest •Perus, Ps ,edieto' a nephew, fro a nearby houscand called 'ohora of' the TPDP. , Surchard wont on to -' rL -2- allege that when the soldiers arrived

Porous showed than'. a bicycle, clothes a.rid coffee. On searcilng furtner, tno pary disc overea two packets of powdered niilk, one half full, hidden in a hole in the groLuld in a cassava shari'ia near Benodico' S house Also discovaroviero a bag of Qenent and five bags at sugar. Pe'eus theil allegedly confessed that hq 1 together ;ith Wendelin and Benedicto had stolen the .il.i: troni Kagondo 1 Hospital and hidden 'it.. there. But a soldier, 10.UD3705 Cpl. Raaadhani TTasudi (p173) had a slightly different' story. He arrived at the scone and :eound ercus surrounded by a i.lOb of a1bout200vill'ers. 70 saw a ndle of clothes ilacod a Pereus' e f e e t and 1.:.!e villagcrs showed x1i:1 a bicycle sonic distance away. Then Porous directed the soldier to a spot whore :;he .niilk was found. '' phoned the.policp Who cane the foll,own day and 'took Porous and the ie.as away. It is true, therefore, that Bonodicto was not' at hone when all this was happenixg at his shanba. Significantly, no one cane to testify aeto when and where Benedicto was arrested The story ca,efrc.' Benedicto hmnself. Ho and his wife, LTvanahawa Hussa (D'12) had left on the nlonaing of firs U Jii"e to see off T' ar'na s's Ic w1r and or businoe in Bukoba town. They returned on 4 June. But on the way hone' they wore picked up by soldiers, who knew thea very well, and detained in Wahoya TPDF Caup. Benedicto waS

ascanito' until he hocano uncOnscious. The seriousn.ese of the assault was confirnod by Ho,B'.1363 D/CD1. Sanviel (PW5) to whon Benedicto was finally handed by Ranadhani TTaswdi (PW3). In fact, Benedicto had to be adniittod in hospital. Bonodicto therefore denied. to evo been bos?igod or to have escaped fro' his house ie tonJrcd frrc vclot of hie rsol and denied any Iniovilodge of the two pacJ.:sts of nilk The trial magistrate coiividtcd the apDcllante solely on the alleged confession by Porous He. sto ed that the confession was adniosible, saying ths;b it was not made bet ore a :2011cc officer, and oninod that it was a voluntary confession. First of all, it is doubtful who thei Porous ,nado a,ny cefossion. If hO dtd, there is no oplanation why it was hoard by Burchard alone.. It 'was ccrtOinly not hoard by Raric aJ - c uJ.i 'h' 1 e j tcr cc id Iiat 'P ro LiS did ii 0 uC 11 i 10 how ho know that there was xilJ: at thc spot. ' In fact, ii; is equally doubtful wbetiier Pe'reus pointed out tho spot. This was allogcd,by Renadhani alone hut Durchard said' that the ,iilk was just discovered in the course of the search. iToi, which of thosc witneocco was to be bolievod and on which point? 'I find it difficult to rosolvo the issue and the trial magistrate foyer gave it thaught at all. In jTy opinion. end even though Porous could not risk onto ring his dotncc, the doubt sioinld be

resolved aga:nt the prosecution which aduced' this contradictory ovidoxicO. ' I therefore find it safer to conclude that I'erOus neither pointed to the milk nor confessed to its theft. It was just found in the course of the search. Secondly, ass,:.ningthoro was any confession, it is doubtful whether it was voJiuntarily nado. With a :iob of aout 200 hostile vllJn,orr surrounding Porous - the rii wich,iad already placoc a candle' ox clpti'es at his ioot - it is not diffiOult to sac that ho could have been edged into saying what he did. The ,cireu,istancos do not surelyroiirb to a voluntary confession, Finally, the trial naagistratc erred in holding thit the confession was not nOde to a police of ricer, Buieh rd as a iil ' a e As sn no hid hc powers of a police officer e:orcisaiJ1e by a consteblo. The so-called confession was therefore enbiudod by section 27 of the idonco Act, 1957. y t 7hat othor evidence wa here to CojJaeCt the appellants with the offence? I willstart with Yendolin. A s;aail quantity of milk was faoond :Laliie house and he gave an explanation supported by a cniio.nt tho flilk was tahe; to the Jiospital by .[ioid (FT5) nnd. Sister Thrita (711) af;er instructing Wondelixi aria i;he tro cell leers to stay behind. bendel:i.n therof ore charged tbat the y had changed the riik i:a laic absence. I do not see how the n:cocccirton could legitin'tely escape ouch an

accusation after this conduct. In fact there VICTC factors tending to the truth of ;hc accree io'i Tho first j' i Sisr ria s a sharaeless liar. She denied going to 7endolin' s house for tho search when in fact rule did A irson of that poisoned .aontalty could vcry well collub in changing the milk if it was fouo.d different from the stolen typo. The second factor is that the prosecution refrained from oLaoniilg, the coil leaders who wiiuesocd aic search. .uhey had GO be called oy 7, endelin in dc;iomce. :Ino purpose Ci calling th0e leaders to ;itness the search was Lo make them avail ic for giving evidence on the search0 Since the prosecution decidoci to exclude them it can safely be assaiod that the prosecution knew that they would give eabarrassing evidence. Indeed, Yohana Thomas (D.73) , statci that the milk lie saw at W Viendoiin' o house was of the very yiDe even his owil children got :cron the Clinic. In thes e circuasances t I em sa- GisIled -Ghat tio prosecce;ion did not prove iGS case against Thndolin • I thinl:, with respect that the milk was fcndclin' s iavifhil property. I finally come to Bonodioto. It is true that two acl:ets of milk were unoartbod not far from his house Iteosms, too, hat e ui 1 : as SL'IIlCIC Jj idc-ntiLicd as hevirig co'o ironi the .JosplGal. All bai was ?uroly circumsan Lial • Circumeanial t evidence should not be acted upon if it can be

explained away by othr co—s7istin-Q,' fectors hcre Viereuch factors here. FirsGly, there was no evidence tlmvG Benedicto owned the cassava field in which the milk was found. Secondly, there were two houses near that snot, the other one being the abode of Perous • There was no evidence tO connect the mill;: witb: Benodicto' s house as opposed to Porous' s house. Of course, T nero was the sor' 01 oiodico cJco2at niy. . a doubtful story and I ;hi:cJ: Brrciurd lied for reasons known to himself. I find it ridiculous to suggest that Bonodicto and three others who were saih to be in his house escaped unnotice from the watchful eyes of a gang of villagers. I &coet Bonedicto's vreroion that he had loft peacefully on his business. It is likely that Burc.Iaard and his gang arrived after Donedicto and his \ifo h'd gone away. Ilurchard must lavo lied, but it was in keeping with his character for ho also lied on the confescon. I find, therefore, that bhcrc was3 ao OviOCj)CO to CO L C B c ic o i h ul o il aid with the offence. By reason of the foregoing I ceumot S8e t].:e basis of the appellants' cnviction. :7ho trial .msgistratc would certainly have come to a di±:Cercnt decision had he: not miecLirec td hi: self on me IacG and admir3sihilrcy o the alleged confession. Even :he Eepuiic did floG seek •GO supporG his decision. I allow these aposals and cjuash the convic - ions and sentences. The appellonGs snould be sec free i orthnith rua.ioss feriLer lanfully meld. • I is a piy that Bonodicto was so savagely nesaultod by members of our defence forces and I hope someone vh ii inculcate of discielino there. 2fAf IL 1G OTJTk' S h LUGKT'TC SEA 24th obruary, l97C JUDGE