Saidi Makombo vs Republic (Criminal Appeal No. 63/96; CRIMINAL APPEAL NO. 64/96) [1999] TZHC 185 (13 September 1999)

I IN THE RIG:~ COURT OF TANZANIA ' - AT MTWARA --- (MTWARA REGISTRY) APPELLATE JURISDICTION CRIMINAL APPEAL NOS 63/96 & 64/96 OF THE DISTRICT. - GOURT OF NACHINGWEA DISTRICT .AT 1 NAC.Hii\JGWEA BEFORE: J.K.A~ KHALllil; ESQ., P.D. MAGISTRATE SAIDI MAKOMBO ......... .oooAPPELLANT versus: THE RF.PUBL,1Co O O O o:e ;, 0 0. 0 0 .RESPONDENT JUD GI.VIENT. On 11th April, 1996 five youths appeared before Nachingwea District Court facing a charge of cattle theft c/s 268(1) (4) of the Penal Code Cap 16. They were ( 1) NWENGE SAIDI (2) ALLY BAK.ARI (3) AMULI ALLY (~~d appellant) (4) MUSSA HAlISi and (5) BETOD ISSA (6th accused) ']here was also another young man in the hame of SAID! MAKOMBO (1st appellant)o This man waE charged with receiving stolen property c/s 311(1) of the Penal Code Cap 16. He appeared in Court as the 5th accused. When the charge was read over and explained to them they denied. But at the end of the trial Saidi Makombo (1st appellant) and Arrruli Ally were found · . . (2nd appellant)Lguilty as chargedo They were convicted accordingly. They were each sentenced to 5 years imprisonment under the Minimum Sentences Act, 1972. They were also ordered to pay PW1 AUGUSTINO LUKASI ~hs. 50,000/- being the value of the two goats alleged to have been stolen. They were aggrieved. Hence this appeal. It is in the record that on 27.3.96, PW1 Augustina Lukasi entrusted his goats to a youth called JULIAS JALUO for grazing. In the evening PvJ1 Augustina was informed by the said Julias Jaluo that two goats had got lost. These were a he-goat red in colour and a female with black and white spots. P:11 reported the matter to the Police. The Police suspected the above mentioned youths. They rounded them up and interrogated them. Through their interrogation they were made to believe that the 5 youths above mentioned were the ones who had stolen them and sold them to the 1st appellant Saidi at an agreed price of shso 8000/-. The Police were made to believe so through the caution statements of those 5 youths 0 They arrested all six and charged them as above.

..i. 2 I:ri their defence alrnost·a11 of them repudiated their caution stiteriients in tliat the~ were simply wrote down by the police and were ., ordered to sign them btindly. They denied to have stolen the aileged goats. The 1st appellant also denied to have received the alleged stolen goa.ts1 The trial Cou:r-t found the appellahts guilty on ._the strength of the said repudiated cautiori statements. In their grounds of appeal they insisted on their innocence. The learned State Attorney Mr,, Masaju who represented the Republic at the hearing of these appeals did not support the convictions for the following reasons:- Firstly, none of them was found with the alleged stolen goats. Secondly, it was wrong to convict the appellats on uncorroborated repudiated caution statementso He referred this Court to the case of BOMBO TOMOLA Vs R 1980 TLR 254. ___ ....__---- Thirdly, the circumstantial evidence surrounding this case was not water tight contrary to what was stated in the case of REPVBLIC Vs. HASSAl~ JUNANNE ( 1983). TLR 432. I have carefully gone through the record. I have also carefully considered the appellants' grounds of appeal and the learned State Attorney's reply. The appellants were convicted solely on the uncorroborated repudiated caution stateinentso This was wrong as per the case of Bomba cited by the learned State Attorney~ Secondly, those caution statements did not amount to confession or admission at all~ The alleged stolen goats in this case were a male goat red in colour and a female goat with black and white spots~ But in the repudiated caution statements where the five youths alleged to have found two goats wandering about and sold them to the 1st appellant, two of them mentioned the colours of those goats to be black and white~ No red colour was mentioned anywhere~ The other 3 simply mentioned two goats without mentioning any colour~ These youths might have been talking a.bout other goats and not those of PW1 Augustinoo a Thirdly the said grazer Julias Jaluo was not called a.slwitness to shed more light as to how those goats got lost and whereo It is upon the above reasons that I concur with the learnecl State Attorney that there is no cogent evidence to support the conviction. In view of this I quash the conviction and set aside the sentence and compensation order. The appellants are to be released forthwith from prison unless lawfully held in connection with another case or cases • • • • /3 •••

... 3 Appeals allowedo Cour.t:

i // , I /!,., .. -: .. 1 ..... / .f So' No KAJI JUDGE 13.,9.,99 Judgment has been delivered in the presence of Mr. Masaju learned State Attorney for the Republic and in the absence of the appellants who do not wish to be present this 13th day of September, 1999. Ii 1' . : '· ~·- / So N. KAJI JUDGE 13.,9 .. 990 B/C: Mr. Ladda - R/A