Jackson s/o Moses vs Republic (DC HC - Criminal Appeal No. 38 of 1998) [1999] TZHC 318 (12 March 1999)

fJ{L-J0\AK,-- fv, ,-_ I /1 ·I) /1 ( .. I " / ( v.J ('rK- 17 IN 'i'HE HIGH CduRT OF 'l'ANz.Al'i/IA AT MBEYA DC HIGH. COURT -C:RD\I:NAL APPBAL NO. 38 OF 1998 (From the,ecision of the District Court of ivibeya at tfoeya Criminal Case No. 6L5 of 1997 Before~ S.M. Lwabutiti - District \Viagistra.te) JACKSON S/0 MOSES 001)000':0000000 APPELLANT Versus THE REPUBLIC •••• o' , o , •• , • , • • • • • • RESPONDENT ·--------------- JUIX,M . .1!1-!T -~~---- The appellant, Jackson Moses, was jointly arraigned before the district court of Hbeya with Hilary Gosmas as the [.ir.~ and -~~J?-d accuseds respectively, on two coun.ts~ ,c_o.2:E.E.i.F..?ll~;t to comn:J.t.,.§!:£ .... 2.ffence, contrary to section 384 of the Penal Code, and ~~eaking .§.taj.ing, contrary to sections 296(1) and 265 of the Penal Code. The second. accused 1:1as acquitted of bot.h counts but the a:ppe;Llant_, as acquitted of the first count and convicted of the second count·. and sente.nced ,. to five years. ,imprisonment under the !hnimum Sentences Act. 1972. 'l'he r conviction.and sentence aggrieved him, hence this appeal which was unresisted by the Bepu.blic and which was heard in the absence of the appellant who had expressed a wish not to enter a11 appearance. Ybha.na Nyaulawa. (P\tl'i) ovms. a workshop at l''iwanjelwa area in Mbeya iVmnicipality. Paschael lyagwe (1',J3) was a technician there, and Victor Koncia, a deceased, was a night watchman. One of the articles in the wnrkshop·was a grinder mashine and its wire cable worth shs.280,000/=• On 22.8.97 the workshop was closed at 6.00 pm. Padlocks were fastened at all its four doors. At about 10.00 pm tpat night PW1 and PvJ3 received :;• a report that the·· workshop had been· broken i:q.to. ·rhey went. ,to the . workshop where 1 ·the. watchman, Victor Konda; told them._. tn,at he W?-5 invaded by bandits who broke one of the four doors, b;y- for.cing open its padlocks with an iron (• . · .. ,' .. ,.• ·bar. 'l'he grinder mashif:ie and• it-s :cal;>le were found mis~ing. Victor t(onda .. . . 0 Q O O O O O O Q O O Q O /2

2 - said he managed to identify one of the bandits as the appellant. Victor Konda, however, died before the trial, and-his recorded statement was tendered in evidence under section 34B of the Evidence Act 1967. HJ1 and P\rJ3 prowptly reported the theft at Central police station and escorted the police to the house of the appellant that saine n:j.ght. '11hey found his parents and his wife but not the appellanto '.ihe police decided to __ take them to the police station to force the appellant to resurface. lilq · father l).a_d. claimed that t}:le appellant had not been seen for one month. 1 1 he following day (23.8.97) at 3.uc pin the police E;urn,t1oned PW1 and P't/3 who found them v,i th the appellant. •rhe appellant then led them to the room of his friend Oscar in a hou·se at Uyole area where he had kept the stolen mashine. ·rhe house was that of .Asifiwe Kyando_ (PW2) and Oscar was a. tenant in the house • . ... :_ .- Oscar was not around, and the appellant poir1ted at the room of oscar and the police broke into it in the presence of Pi: ✓ 1, PVJ2 and HJ3. The mashine was not found in it. According to HJ1 , P\v'2 and PW3 the appellant showed the room of Oscar telling the police that the mashine he had stolen with Oscar was kept by. them in that room. F,--i2 added that the appellant used to isit Oscar• oft:ri. Only 2 mattresses, L1- trousers, 2 compact cassette, 1 torch and 3 Toshirts were found in the room. Oscar managed to disappear before the arrival of the police and HJ1, and PW3, and he had not been traced when the trial coinmenced. On 26.iJ.·97 D/Copl r'.bazi (P.1J4) recorded the cautioned statement of the appellant which v1as tendered in evidence despite that the appellant had ' . . . objected to its admissibility claiming that it was not the one he had given. In the statement the appellant admitted _;co have ta},:en part in the l:ireak1ng and theft with Oscar and to have kept the stolen r,iashine at the room of Oscar at Uyole. The second accused told the trial court at rt,ri,e trial that he drove taxi reg. No. TZi 8003. During the ni 0 ht of the incident at about-8.30 pm b:e was parked at Mafiati areao 'l'he appellant approached him and hired his taxi h a certain house in 0yole area. 'l'he appellant carried something he did not know in a plastic bag (rawbo). The appellan~ di!i not ask the second accused any questions. o•oaoooo•oo ♦ oooooc•• /3 ,

3 - .:::,,. 'I'he appellant in his defence said he was at Uyole area during the night of 22.8.97. bo he was not at home when his parents and wife were taken by the police. He was thus told by his brother and uncle the next d.ay and he went to the police station for them. ~-re was then arrested and told he had stolen the grinder rnashineo With respect to the learned state attorney, I a'11 satisfied that this appeal is devoid of merito In the circumstances of this case I the confession of the appellant 1 though repudiated, was voluntary and true.. 'I'here were no allegations that the confession had been obtained by improper or unlawful means. Indeed the confession could stand on its own against the appellant.. But there was the evidence of PW1 1 PW2 and PW3 which had sufficiently and materially corroborated the confession. 0fcourse, as rightly _submitted by the learned state attorney, the statement of the watchman, Victor ,Conda, was inadmissible on account of that it violated paragraphs Cc), Cd) and Ce) of section 34BC2) of the L'vidence Act 1967. But the discounting of that statement did not detract from the soundness of the conviction of the appellant on the evidence and in the circumstances. 'l'he sentence handed down was the very minimwn prescribed by law. stands dismissed in its entirety. For Appellant: Absent. B.P. MOBHI JUDGE, For Republic: }'ir. Nangela, State Attorneyd I C::£RTIFY 'l'H!i.T Ti.HS IS A TRUE COPY OF 'l'HE ORIGIN.AL.