R. v. Mabuku and Another Crim. Sass 112-Dodoma-71; 9/2/72; Mnzavas, J.

 

R. v. Mabuku and Another Crim. Sass 112-Dodoma-71; 9/2/72; Mnzavas, J.

The accuseds were charged with murder c/s 196 of the Penal Code. The prosecution called not less than six witnesses who explained to the court the various circumstances of the deceased’s death. In their unsworn defence the accuseds told the court that they had been forced to make an extra-judicial statement to the justice of the peace, the first accused going further to say that he had been forced to sign his name on what the Area Secretary had put on a sheet of paper. Since the prosecution’s case centered on the extra-judicial statement made by the first accused that he and the second accused had assaulted the deceased and left him helpless in the maize-shamba, the defence contended that the statement had to be corroborated as it had since been retracted. The defence went further to submit that even if the statement could be taken into account against the first accused it was improper to consider it against the second accused, being a confession of the co-accused

            Held: (1) “I agree that the prosecution case is wholly based on the extra-judicial statement of Faru to the Justice of the Peace. I also agree that Faru has in the trial within a trial retracted the statement he made to the area secretary. The first question this court has to decide is therefore whether the circumstances in this case are such as to entitle the court to act on the retracted confession of the first accused. My perusal of decisions of the court of appeal on the question of retracted confessions tells me

That it is not a rule of law nor is it a rule of practice that a retracted confession has to be corroborated before a court acts on it. It is however essential that a court has to be satisfied that a retracted confession is true before acting on it.” (2) “The accused in the trial within a trial told the court that he admitted killing the deceased because police constable Nkata (P.W. 4) subjected him to violence. He told the court that P.C. Nkata slapped him when he was taking him to Manyoni police station from his village. I totally fail to accept Faru’s allegation that he was forced by P.C. Nkata to give a statement to the Justice of the Peace. P.C. Nkata gave evidence and was subjected to a long examination in chief. The learned state attorney anticipating that the accused was going to say that he was subjected to violence when the time came for production of his extra-judicial statement, repeatedly asked P.C. Nkata whether the accused was subjected to violence or forced in any other way to give his statement to the Justice of the Peace. P.C. Nkata told the court that the accused was not in anyway forced or subjected to violence in order to extract a confession from him. In spite of these replies by P.C. Nkata was an afterthought. I see no reason to disagree with him. Had it been a genuine defence the defence counsel would certainly have put questions to P.C. Nkata about the alleged maltreatment of Faru. What is more Faru totally gave a different story in his unsworn defence. There is also the unusual remark by Faru to the deceased’s mother. There Faru accused the deceased’s mother of having killed a person. Taking all this into account I am satisfied that Faru’s retracted confession is fully corroborated by other independent evidence. I am unable to conceive how Faru could be in position to relate to the Justice of the Peace that the deceased was beaten on his head, a story which has been found to be correct, if he was not actually present, and present in an active manner, when the deceased was assaulted. For my part I am fully satisfied that Faru did take part in assaulting the deceased.” (3) As for the second accused, Fundi, I agree with the learned state attorney that after the amendment of section 33 of the Evidence Act by section 19 of Act No. 26 of 1971, the law now is that a confession of an accused affecting a co-accused can be taken into consideration against the co-accused. The meaning of the words “take into account” was discussed in the Indian Case – Emperor vs. Kehri and others – 29 Allhabad 434 and followed by our Court of Appeal in Rex vs. Hangingombe and another 8 E.A.C.A. 33. The court decided that the only way in which such confession can be taken into account against a co-accused is as evidence. The confession of Faru therefore is evidence that Fundi also participated in the beating of the defeated. But such evidence though tending to implicate Fundi with the death of the deceased, the evidence is that of an accomplice.

It is a rule of practice almost amounting to a rule of law that it is unsafe to convict a person on uncorroborated accomplice evidence. Amendment of section 33 of the evidence Act by Act No. 26/1971 does not in any way abrogate this rule of practice. Faru’s confession in so far as it affects Fundi suffers from lack of corroboration and as such it would be extremely unsafe to act on it in determining Fundi’s guilt. In the event I find Fundi not guilty of any offence and I accordingly acquit him.” (4) “Having found that Faru took part in beating the deceased; and taking into account his extra-judicial statement that he inflicted blows on the deceased’s head till he became helpless, and the medical report which is to the effect that the deceased died of head injuries, the only inevitable conclusion is that Faru killed the deceased. What I have finally to decide is whether the killing amounts to murder as alleged by the Republic. On the evidence t is difficult to say with that amount of certainly required in a criminal case that Faru inflicted the fatal blows with intention to kill the deceased as to cause him grievous harm. There can be no certainty on this question; and it is sufficient for me to say that I entertain at least a reasonable doubt on the point. The accused is entitled to the benefit of the doubt. I find the accused not guilty of murder but guilty of the lesser offence of manslaughter c/s 195 of the Penal Code.” (On accused sentenced to 7 years imprisonment and another accused acquitted).