19791005 TZHC Tanga

IN THE HIGH COURT OF TANZANIA AT TANGA ORIGINAL JURISDICTION (Arusha egistry) CRIMINAL SESSIONS CASE NO0 21 OF 1978 THE REPUBLIC versus SIMON PETER BWIRE Charge: Murder contrary to Section 196 of the Penal Code. JUDGEMENT SISYA, J. - The accused person, Simon s/a Peter B alias Bwire, stands charged with the offence of murder. He denied the truth of the charge. There is, in this case, absolutely no dispute whatsoever that the deceased, Clement s/o Mayo, is dead. Evidence on J this aspect of the case was given by one CORBIAN s/a MAHINYA (Pw.12), a cousin of the deceased who identified the dead body of the deceased to the doctor who did the autopsy and also by the doctor himself, one Doctor MARIKA MOHANED (PW09). It is also in evidence which was not disputed and which I accept that the deceased was shot down with a firearm. Doctor Mohamed stated in his evidence that the deceased had. a punctured wound ½" in diameter just above his right eye. Internally, the deceased had a fractured frontal bone and the brain tissue at the base was severely lacerated. There was a piece of metal which he found and removed from the damaged brain tissue near the occipital region. The postmortem examination report which he prepared and signed was tendered and received in evidence as Exhibit P.3. -• Evidence which I accept shows that the deceased who, incidentally, was a militiaman was then on guard duty. He was guarding wages, the amount of which was not disclosed, which were just about to be paid to the employees of a tea estate at Ngua. He was shot down in cold blood and I entertain no doubt whatsoever in my mind that whoever shot down the deceased must have done so with express malice aforethought. It is the case of the Prosecution that the accused in the dock is the person who shot and killed the deceased with a pistol.. The accused in his an unsworn statement in defence sidthat he did not even go to Ngua on material day. According to him he was, on that day, making bricks for a Roman Catholic church at Muheza. - The evidence implicating the accused in this case is entirely that of identification. In this connection I, most respectfully, agree with learned Counsel for the accused, Mr..Bishota, that in that case such evidence must be water- • tight to justify conviction, See, R. V. Sebwato (1960) E.A. 179; • Emmanuel s/a Tumbotele V. R. (1968) H.C.D. 144; Andrea V. R. (1971) H.C.D. 141. I summed up the case to the assessors who sat with me in the case. Both of them cepted the evidence of all the Prosecution witnesses without any reservations. • •-,•. b MW They, therefore, found accused guilty as charged. It is now my turn to review and scrutinise the evidence and come to. a decision in this matter On the issue of identification on which, as aforesaid, rests the outcome in this case the Prosecution rely on the evidence of aix witnesses, namely: SIWANO s/o MICHAEL (PWl), AMINA d/o HASSANI (PW3), SIMON s/o MGAYA (PW4)' i ATILIO s/o MLOWE (PW5), LEONARD S/o WEREMA (PW6) and EDWARD s/o ISAAK (pW7). Two of these witnesses, i.e. p.w.l and 'P.W.4, testified that they witnessed the actual shooting whereas the rest testified that at one time or another on the material day they saw the accused at Ngua. Briefly, P.W.l, an accounts clerk employed at a Tea Estate at Ngua, testified that on 16th April, 1977 at about 1.30 p.m0 whilst he was in his office another accounts clerk, one Ferdnand s/o Bernard, arrived from their head office at Ngua. The said Ferdnand s/o Bernard who, incidentally, did hot give evidence before me brought with him some money meant for wages of the employees at Ngua tea estate. He, i.e. Ferdnafld Bernard, was escorted by the deceased who was armed with a semi automatic rifle. Ferdnand went straight into the field assistant's office which, according to Siwano,'was 'on hisleft as he sat at his desk facing the only exit door to the building, See Exhibit P.1. He, i.e. Ferdnand,closed the door behind him. The deceased did not enter the field assistant's office He sat in front of Siwano but slightly to the side as he kept the watch of the entrance into the building. Soon afterwards as he, Siwario, was busy with some paper work he heard a voice command, "Weka silaha chini." (put the weapon down). He then turned his head to see who it was that uttered the order. Two paces away from him he then saw a tall,' slender and black skinned man wearing a brown kanzu and a small cap and rUbber sandals. The said man also had small beard on his sides. He was holding a pistol about two feet long and he was pointing it at the deceased. Afraid and thinking that that would be the end of him Siwano closed his eyes and momentarily ran his palms across his face as in prayer and then looked again. He, Siwano, then saw the man, with his right hand stretched, squeeze the trigger of his pistol. It fired and the bullet got the deceased just above his right eye. He was positive about this because he saw it with his own eyes. The man fired a second shot but he, Siwano, could not tell whether or not the bullet got the deceased because he was then panicking. Thereafter, the man ran out of the offide. He, however, stopped at the window and peeped back into the office with his mouth wide open. According to Siwano the man did so like a person who had been taken by surprise. Siwano then noticed that he had a gap in his teeth, on the front lower jaw. In his evidence Siwano said thathe could identify the man because of his right hand. He did not mention any peculiarity or special mark on the said hand. If need be, on this point, I recorded Siwano to have said and I quote from the record: - "I saw the man's right hand when he was about to fire. It was long and very thin. His fingers which were folded were also thin. From his right hand I was positive that I could identify him if I saw him again. The man stretched his hand when he fired at and shot the deceased." - ) ' -3-. During cross-examination by the learned counsel for the accused, Mr. Bishota, Siwano conceded to have made two statements to the Police0 One, Exhibit D2, was, made on the very same day of the shooting, i0e. 16th April., 1977, and the other, Exhibit Dl, was made two days later i.e., 18th April, 1977. In Exhibit D2, Siwano gave the description of the man as tall and black and wearing a brown kanzu and a cap. No mention was made about the hand or the gap in the man's dentitlon which in Kiswahili is called 'tMwanya." In fairness to Siwano he did mention in Exhibit D2 though that if he saw the man again he could identify him. In Exhibit Dl, Siwano did not mention the hand. However, at page three of this original handwritten statement there is the following statement: tAna sharafa na kidevu na mwanya Chlfliq," This statement was clearly added and it is in different ink from the rest of the statement. The Police Officer who recorded this statement gave evidence in the case. It so happens that he was the investigating officer, Sub-Inspector EVARIST s/o MCHOMVU (PW10),' He conceded that the statement under querry is above the, line and inserted between two words and that it is in different ink. He, nevertheless, agreed that hewas the person who recorded it. He weflt on to say that after his investigations he handed over the file to the Officer Commanding District, Muheza, to have the statements typed. The fact of the matter is that this statement "ana sharafa na kidevu na mwanya chini" does not appear anywhere in the typed script of this same statement of Siwano and which, incidentally, was the one produced in the District Court at the time of Preliminary Inquiry in this case. There is no expla- nation for this omission and none was offered. I have very carefully considered the evidence of siwano. Part of his evidence has a ring of truth whereas part of it sounds to me patently false. He no doubt must have seen the assassin albeit briefly as, no doubt, the events must have been moving fast. I, however, find in inconceivable that after shooting a man the killer could have loitered around the window with his mouth wide open. Siwano said that the man was there for about a whole minute and that is how he saw.the "niwanya." At the same time it was this very Siwano who said that he became scared when he saw the pistol and, after the - ' first shot, he even panicked. He went on to say that he began to cough and weep because of the smell of the gun fire which filled up the room which he, Siwano, said was small and its windows, which he said were high up (uu sane) were closed. Because of all this I will not be prepared to act on Siwano's evidence unless the same is supported by some independent and credible evidence. This takes me to the evidence of the second person who said that he too witnessed the shooting. He is Simon Mgaya (PW4). This witness said that on 16th April, 1977 at about 1 p.m. he went to the office at Ngua to receive his pay. Since the money had not yet been brought he waited behind the office block. There were other persons present. He, however, noticed that there was also a black, tall and slender man who wore a white kanzu, a white cap and a pair of shoes. He, i.e. the said man, carried some package which was wrapped in the type of (Khaki) paper used as cement bags and he was eating a bun. The money for wages was brought at 1.30 p,m. and Simon stood at the window of Siwano's office. He then saw the man go to the front of the office and enter Siwano's office. Thereafter the deceased too entered the same office but advanced farther on. Suddenly the man shouted, "Hapo! HapoP' (There! Therci" 4 -4- According to Simon when the deceased wanted to stand properly the man then shot him, i.e. the deceased, on the left arm. The deceased tried again to stand properly whereupon the man shot hIm again. This kime higher up but on the same arm. The deceased wanted to stand up properly yet again and the man shot at him a third time. This time the deceased Was hit on top of his face and he fell down. On seeing this he, Simon, picked up a stone and ran round the building. He ñiet the man at the corner brandishing his pistol. Simon then retreated. The account of this witness as to how the incident happened differed from that of the other eye witness. For example, this witness said that the killer entered the office first t that is before the deceased whereas Siwano said that the intruder found him and the deceased in the office. Again, Simon said that the killer first shot' the deceased on the arm whereas Siwano said that the fir8t shot was just, above the right eye. Now, turning to the attire in which the intruder was in Simon said that he wore a white kanzu, a white cap and a'pair of shoes, adding that he saw the man well. Siwano • said that the man wore a brown kanzu and a cap. There was a suggestion by learned State Attorney that Simon could have confused his colours. There is no doubt at all in my mind, however, that Simon knows his colours. I tested his eyes on a white blotting paper and he knew it was white0. He, i.e. Simon, mentioned that the kanzu which the person wore was white three times, that is in his evidence-in-chief, during cross-examination and in answer to a question put to him by • the, second assessor. It was onlyin re-examination and, further, only. after his statement to the Police, Exhibit D3, had been read out to him that he showed a brownish patch on his own shirt to be the colour of the kanzu in question. In the said statement to the police Simon said that the colour of the kanzu was "Zambalala" instead of "Zambarau," When asked what colour was "Zambalála" he seemed quite at a loss. Finally, Simon said that the man shouted, "Hapo! Hapo!" whereas Siwano said that the man shouted, "Weka silaha chini," The learned State Attorney submitted that these contra- dictions and inconsistencies in the testimonies of these two witnesses are minor and understandable in all the circumstances of this case. Both gentlemen assessors agreed and they suggested that it was because shots were being fired and Simon was probably afraid to appear in Court. With the greatest respect, I do not agree. It is true, as the first assessor said that suppose someone began to fire indjcriminately as we sit here in Court everyone of us would be scurrying for shelter. That would, however, not entitle us to invent stories. Likewise, if the Courts were to accept everything a witness has said on the ground that that was his first time to appear in Court and he/she was, therefore, afraid then we shall be treading on an extremely dangerous field. Admittedly, things at the material time must have happened fast, like lightning, and it must have taken everyone except the killer by surprise. Even then why should a person not be content with what he managed to see and what he managed to hear? It would, to my mind, make a lot of sense if a man came forward and said, "I heard the man shout something to the deceased but I could not catch exactly what it was,"and not to fit in wcrds of his own imagination which may conflict with those of the people who were ,better disposed to hear. In the instant matter the type of inconsistencies which one can readily understand is for example the number of gun shots fired. One with a sharp ear can hear three whereas another can hear two or even only one. 4 '-5- This, as I said, will be perfectlyunderstandable but certainly not, to my mind, where one says a man shouted "Weka silaha chin!" and another says it was actually only, "Hapo! Hapo!" Because of these discrepancies it became imperative to me to scrutinise the evidence of these supposed eye witnesses further0 It then occurred to me that even the presence of Simon outside Siwano's office does not appear to be understandable. Siwano himself said that the windows of his small office were quite high up (juu sana) to the extent that he himself.could not see the outside while he was seated at his desk and furthermore they were closed. Payment of wages was being done through the window in the adjoining room, i.e. the field assistant's office where Ferdnand was with the money0 If I may go further with this witness., Simon, he went on to say that later he attended an identification parade at which he picked out the accused0 He did so after, accused and, the rest of thoseon the parade had been asked to expose their teeth. Simon claimed to have seen the accused's gap in his teeth in front of the lower jaw when he saw him eating a bun.. Without more, I find this incoceivable. The officer who conducted the identification parade himself, ASP MOHAMED MBAJI (PW2) testified that Simon requested him to tell those on the parade to smile' which he did0 Thereafter Simon identified the accused0 Yet before me during cross-examination Simon had the temerity to say that he never asked PW2 to tell those on the parade to . "Cheka" (laugh) but only that thd Police asked him to "Cheek" on the Parade. I must say that whatever Simon was trying to say here the same did not impress me to be of any substance or value. Apart from the oral evidence of PW2 on this point there is also the identification Parade Register, Exhibit P2(a), which clearly shows that Simon identified accused after the latter had exposed his teeth. - Finally, Simon deliberately appeared not to understand what the term "Nyongeza" (Additional) meant on the statement which he made to the Police. The Court took time to explain to him what the said term "technically" means when the Police use it on a statement. In this particular case it was an additional statement which he made after attending the identification parade. Still, Simon pretended not to understand. He, however, identi- fied his signature on the said statement'whjch the defence put in as Exhibit D3. 'In the said statement which is dated 27th April, 1977, a day before he attended the identification parade, on 28th April, 1977 Simon made no mention about the "Mwanya." Having said all this let it suffice to say that on my part I encline to the view that Simon Mgaya is a brazen liar. ' It will be dangerous to rely on his evidence which I accordingly, therefore, reject. On the other hand the, version by Siwano that the deceased • was shot while he was seated is very consistent with what Doctor Mohamed said on the nature of the punctured wound which he found on the deceased. He said that the said wound "pointed downwards and backwards." This, to me, clearly shows that the deceased must indeed have been seated at the time he was'shot. . It is perhaps now convenient to discuss the evidence' of one ATILIO 's/o MLOWE (.PW5)'rid one LEONARD S/0 .W.REMA (PW6). Th'e evidence of these two witnesses can be discussed together.becàuse according to Leoflard (Pw5) the two of them were together. ' Never- theless, according to Leonard he first saw the accused at about 7.30 a.m, at No. 5, Ngua, where he was doing some work on that day. That was the first time for him to see the accused and he noticed that accused's clothes, which comprised a brown kanzu and a pair of long trousers, were wet at the bottom presumably by the morning dew, He and accused exchanged greetings whereupon the accused proceeded on his way towards the Ngua office, half a mile away. Later at noon when he, i.e. Leonard, and Atilio were returning home from their place of work they passed through the Ngua office. They had to do so because their respective houses were on the other. side of the said office. At a stand or shed, which was being used when weighing tea leaves and which, apparently, on pay day was also being used as a market, Leonard saw the accused. He, i.e. accused, was leaning against a pillar and at his feet was a basket containing buns. Atilio asked the accused the price of each bun whereaupon the latter replied that he was not selling the said buns and that there was actually a young girl who was doing so. The accused then called the. said young girl who then came The said girl did not give evidence in this case. Nevertheless, after a short negotiation she agreed to sell one bun to Atilio on credit. Atilio took the bun and ate it right there. On seeing this the accused suggested to him, i.e. Atilio, that since he was returning from work and.was, therefore, tired, he, i.e. Atilio, should take five buns with him home and eat them with some tea. To this Atilio replied that he was not only broke but also heavily indebted and, there- fore, he could not afford the five buns which accused talked about. The accused, Atilio and Leonard then laughed. From the account of these two witnesses i.e. Atilio and Leonard, one would indeed feel that they had ample time to see and observe the accused. They talked and laughed with him. Both these witnesses told the Court that when they attended the identification parade they identified the accused without any hesitation by his face. Unfortunately, their evidence on this aspect of the case was not supported by ASP ilbaji (Pw2) who testified that both Atillo and Leonard identified the accused after he, accused, had exposed his teeth. ASP Mbaji was supported in his testimony by the Identification Register, Exhibit P2(a). ASP. Mbaji (PW2) was not the investigating officer in the case and, therefore, he was an independent witness with nothing to gain or lose out of the case. I have no doubt that his aim in this case was to assist the Court in ascertaining the facts. I accept him to be a witness of truth. The question that arises is, therefore, if indeed they had marked the accused's face why did they have to ask him to expose his teeth to identify him7 And if they felt the "Nwnya" which the accused has was their identification mark. of the accused person why did these two gentlemen not mention the fact in their respective statements to the Police? The said statements which were put in by the defence to test the veracity of these witnesses on this point are Exhibits D4 and DS. While this question remains unanswered I now turn to look at the evidence of one EDWARD s/o ISAACK (PW7). He is another of the employees at Ngua Tea Estate. He too said that on the material day at about 11.30 a.m. he was at Ngua office on his way to his house where he wanted to wait and return later for his pay. At that time at a place where women were selling their articles he saw a man whom he later identified to be the accused. The latter was eating a bun. He did not talk to him, nor did he, Edward, say how far the accused was when he passed. PW2 testified that Edward (Pw7) identified the accused after he, i.e. P.w.7, had requested that those on the parade should expose their teeth. Therefore, here we have all these witnesses who, from their own accounts one would say that they had an opportunity of seeing the accused in broad day light. There was no panicking or any cause for it then. - - - - .- - •- • -7- Yet when they were given the opportunity to identify the accused at an identification parade each one of them, invariably, has recourse to the same stereotype tactic: Each one of them asks those on the parade to-expose their teeth making the tsmwarlyaht which the accused has on the front part of his lower jaw appear, as it were, the identification mark0 At the same time the said "mwanya" was never mentioned by p.w.4, P.W.5 and P.W.6 anywhere in their respective statements to the police, viz: Exhibits D3, D4 and D5. Even Siwano, P.W.l. He did not identify the ac€used at the identification parade by face and without ado0 The evidence shows that he did so after asking those on the parade to stretch their right hands0 Frankly, on the evidence before me I fail to appreciate the significance of asking those on the parade to stretch their right hands. The accused stretched both his hands in Court at the time he made his defence and there is no apparent difference in them at all let alone saying that there is any peculiarity in his right hand. If Siwano, therefore, noted anything peculiar in the said hand then he should have said so. He, however, did not and I am, therefor.e, at a loss as to what really made him identify the accused from his right hand. Indeed an identifying'witness may request that he sees the parade engaging itself in some act, for example walking. He, nevertheless, must disclose what peculiar features he is after. The second assessor said that he was satisfied with the identification of the accused because he has been identified twice, including the identification at the parade and he urged the Court also to do the same. It is true to say that all these witnesses in question, i.e. p.W.l, P.W.5, P.W.6 and p.W,7, said that they also identified accused by his face. The question that I ask myself now is, in view of all what I have said can it be said that the accused was properly and sufficiently identified? On my part I would not readily answer this question in the affirmative unless and until the evidence of these witnesses, i.e. P..l, p.w.5, p.W.6 and p.w.7, on this issue of identification was corroborated by some other independent and credible evidence. It is in search of the said corroborative evidence that I now turn to the evidence of AMINA cl/o HASSANI (PW3). This witness, pxnina Hassani, testified that on the material day, i.e. 16th April, 1977, at about 9 a.m. whilst she was at her house cum tea shop a tall, slender and black skinned man with small beard on the sides approached her and asked her for the toilet so that he could go and excrete. The Swahili word which the man used was tnjkanye,It This surprised her because it was not customary for a grown up person to be so explicit when he or she feels the urge to open his or her bowels. She, i.e. Aniina, then referred the man to another male who did not testify in this case. She, however, noticed that the man wore a brown kanzu, a small cap which covered only the top portion of his head and a pair of blue rubber sandals ("Kandambili"). Thereafter, the same man returned and ordered a cup of tea and a bun from her tea shop0 She served him. After drinking the cup of tea and eating the bun the man paid her sh. 11= for the same and then he walked away. She, Amine, saw him go towards the Ngua office which was not only nearby but also visible from her place. On 10th May, 1977 she was called to Axnani Police Station. While there she was shown about ten persons - there, actually, were nine - and she was asked if she could identify the person who had tea in her tea shop on the day the deceased was shot0 She agreed and, without hesitation, pointed out the accused0 Amina told the Court that she was then still remembering the accused and she identified him by face0 She was borne out in this by P.W.2 and the Identification Register, Exhibit P2(b), which shows that she indeed did point out the accused to be the person who went to her tea shop. Without beating about the bush I was very much impressed by this woman, Amina Hassani, in the witness box. She was simple, steady and straightforward. I think I will not be overstepping the bounds of propriety if I pointed out that the learned defence counsel also appeared impressed with Amina as a witness. The only criticism the learned defence counsel had of Mnina was that she could have been mistaken because even the most honest of witnesses can make a mistake. It is conceded that to err is human but on my part, having seen Aniina testify before me I am satisfied beyond a peradventure that Ainira spoke the truth and that the person she identified at the parade at Arnani Police Station on 10th May, 1977 was the very same person whom she saw at Ngua on 16th April, 1977 and that was the accused person. Mr. Bishota for the accused also mentioned in his submission that since by the time Amina was called to the Parade several other Ngua residents had already identified the accused who also had made one appearance in Court his identification by Amina was therefore vitiated by these factors0 It is true to say that the evidence shows that there were two identification parades arranged for the accused. The first was on 28th April, 1977 and the second was on 10th May, 1977, It was never disclosed why there had to be two parades on two different occasions. Again, it is true to say that at the time the second parade was arranged the accused had already appeared before the District Court at Muheza. The material point in respect of both these issues is whether Ainina had the opportunity of seeing the accused prior to the identification. From her evidence it is clear that she did not and she was not even cross-examined on this point. I am satisfied that Amina did not see the accused prior to her identification of him at the parade. I am strengthened in'this view by the fact that according to P.W.2 and the Identification Parade Register, Exhibit P2(b), two other residents of Ngua, namely one Samwel S/O Lutangirwa, who did not give evidence, and Edward Isack (PW7) who attended the parade on the same day with Ainina did not identify the accused without exposing his teeth. If, therefore, the facts that a number of other Ngua residents had by then already identified the accused and that accused had by then made an appearance in Court were to be of any effect then these other two identifying witnesses too would have had no need to resort to the exposed teeth. 4, I have given this point a very serious consideration but my attitude towards the evidence of M'ina stands unshaken. I have also considered another point and that is that P,W.2 himself testified that he told Ainina, and this was also true with regard to all the other identifying witnesses, that there was a suspect on the parade. He should not have said so. He should only have asked the witnesses to look around and see if they identified whom they had talked about. Even then I am satisfied that the error did not occasion any mis- carriage of justice. Arnina Identified the accused and specifically mentioned that he was the person who went to her tea shop. Certainly, on her evidence which I have accepted Amina had both the time and opportunity to look at the accused and, indeed, register his face, ," ,- a In his defence the accused stated that on the material day he was at Nuheza making bricks for a Roman Catholic Church. It is not clear whether he was doing so on self help basis or whether he was duly employed to do the job0 Since the accused elected to give an unsworn statement it was not yssible to question him on this point0 While bearing in mind the fact that the duty to prove the case in this matter lies entirely on the Prosecution I, nevertheless, hasten to say that in all the circumstances of this case the mere bald statement of the accused that on the material day he was engaged in making bricks for a Roman Catholic Church does not raise any doubt in my mind0 Having come to this conclusion and in the light of what I have already said with regard to the evidence of Amina it is open to this Court to find that the accused did go to Ngua on the material day and I.find this as a fact0 By denying that he went to Ngua on the material day the accused, therefore, lied in open Court0 The identification of the accused by Amina together with the description which she gave of the person whom she saw in her tea room at Ngua, irrespective of the ."Mwanya" is, to my mind, sufficient corroboration of the identification of the accused by Siwano (Pwl), At this juncture let me dispose of an argument which was advanced by the counsel for the accused, Mr0 Bishota. When the learned State Attorney was examining Sub-Inspector MchomvU (PW10) what description Siwano gave him of the culprit Mr0 Bishota objected and argued that the question was inadmissible and irrele- vant because P.W.lO was not competent to testify on the description given to him since the question of identification was very much in issue. I over-ruled the objection and my authority for that is the case of R. v. Nohamed Bin Allui (1942),..9 E0A.00Aa 72 wherein it was held by the Court of Appeal for Eastern Africa:- "That in every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused, and then by the person or persons to whom the description was given. With the exception of the small beard on the sides and the "mwanya" which, as aforesaid, I find to be later additions all the other descriptions which Sub-Inspector Mchomvu said Siwano told him, namely that it was a tall, black and slender person wearing a brown kanzu, a small cap and "Kandambili" which descriptions I hold to be enough, tally with those also mentioned by Amina. Again with the exception of the attire which was not produced in evidence as we are told the same could not be traced the rest of the description, that is tall, slender and dark skinned, do fit the accused person squarely. There is also the evidence of one HERBERT $ALIM (PW8), This witness testified that on a date which would appear to be 26th Aprii, 1977 he saw the accused walking along the road at Magoroto Ward0 He, i.e. Herbert, was then the Party Chairman of that Ward. Noting that accused was a stranger he decided to follow him surreptitiously as the latter was heading towards the direction of Nuheza. At Magila Herbert decided to call the Police. However, fearing that he may lose trace of the accused he asked a group of persons who were then taking some liquour to watch the accused's movements. C - 10 - Herbert then went and telephoned the police. Thereafter he resumed the exercise. However, soon after passing the last house at Magila the accused, on his own., took to his heels. People gave chase and they apprehended the accused about one mile away in the bush0 p.W.8 said that when he saw the accused he, i.e. accused, had a package wrapped in paper and about six inches long. He saw the accused throw away the said package when he started to run0 After apprehending him the accused was taken back to the place where he had started to run. They looked for the package but all in vain. Eventually, accused was asked why he ran whereupon he replied that he simply ran. During cross-examination POWO8, an oldman who gave his age to be fifty-nine years said that that was actually his second day to see the accused in his ward. The first was on the previous day when he saw the accused walking towards the direction of St. Martin's School. The accused then wore a kanzu whose colour p.w.8 said was of "tigoro" (Tobacco), which he could not describe otherwise or show the like of it even on the cover of the volumes of the Revised Laws of Tanzania. He, i.e. P..8, did not do anything then. He, however, decided to follow the accused when he saw him on the following day. On this aspect of the case the accused said that he ran because his captors threatened him with violence. P.W,8 told the Court that it was, actually, after amused had tried to run away and then captured when those present wanted to beat him up but he, P,W.8, successfully stopped them. The accused himself does not say that he was assaulted after his apprehension. I chose to believe p.W,8 on this point. I cannot conceive how an innocent person with a clear conscience can simply run into the bush. In the circumstances of this case I find that this conduct on the part of the accused is inconsistent with innocence. In short on the evidence of Siwano Michael (wl) as corroborated by that of Amina Hassani, the accused person's lie in denying that he went to Ngua on the material day and the accused's conduct at the time of his arrest leaves me in no doubt whatsoever that the accused, Simon Peter Ewire, is the person who killed the deceased, Clement s/o Moyo, in this case. The identification of the accused has thus been sufficiently established. It seems obvious to me, on the evidence, that this was a case of attempted robbery. If so, and I believe it was, then there can be no doubt that the necessary malice aforethought has been established. At any rate, anyone who aims and shoots another in the head must intend to kill him or, at the very least, to cause him serious bodily injury. Holding otherwise will be flying in the face of logic. Suffice it to say, therefore, that for these reasons given and on the evidence on record considered as a whole, I, like both assessors, find the accused Simon Peter Bwire, guilty of murder as charged and I convict him accordingly. Delivered in open Court at Tanga this 5th day of October, 1979. (H. E. D. (SISYX) JUDGE -11- Allocutus: I have old parents0 They are old0 I am the only child of theirs0 I have two children0 That is all0 SENTENCE Accused is found guilty and cbnvicted of murder0 There is only one sentence which this COurt can and does pass and that is that accused, Simon s/o Peter alias Bwire, shall suffer death by hanging0 It is so ordered. (H. E. D. LSYA) JUDGE Right of appeal explained. Assessors thanked and discharged. (H. E.D. JUDGE TANGA October 5 7 1979