masho mtalikidonga 3 others vs republic 1980 tzca 14 22 may 1980

IN THE COUKT OF APPEAL OF TANZANIA AT DODOMA CORAM :• ,M u st a fa , Ag. C .J ., Mwakasendo, J .A . and Makama, CRIMINAL APPEAL NO. 35 OF 19 79 B E T W E E N 1. Masho M t a l i k i d o n g a ) 2. Raphael W ilso n Mlyuka ) APPELLANTS .3^ Yohana Chengula ) 4; P e k o s i M t a li k id o n g a ) AND THE REPUBLIC .............................................................. .... . RESPCNJE:.'T and CRIMINAL APPEAL NO. 64 OF 19 79 B E T W E E N . ... i ■ • ‘ ^p*THE DIRECTOR OF PUBLIC PROSECUTIONS . . ................. APPELLANT AND i iA^OIS M W A L O N G O .................................. RESPONDENT (A ppeal from the C o n v ic tio n and Sentence o f the High C ourt o f Tanzania at I r i n g a ) (Mwakibete, J . ) d ated the 14th day o f March, 19 70, in CRIMINAL SESSIONS CASE NO. 193 OF 1975 ... • JUDGMENT OF THE COURT T MUSTAFA, A q . C . J . t <» .rf&piiv' *" JV - F iv e p erson s were charged w ith the murder o f on.- ® ■*Abdul S h i v j i M a n j i ; f o u r o f them were c o n v ic t e d as charged, . t w o were sentenced t o d ea th , two were sentenced to be d e _ained # » . * *<* ' i- ’ - it*. » ^ during the P r e s i d e n t ' s p l e a s u r e , one was a c q u it t e d o f murder b u t 's e n t e n c e d to ten y e a r s ' imprisonment f o r s h o p -b r e a k in g , and s t e a l i n g . The f o u r c o n v ic t e d o f murder have a p p a a le d , - , and so has the R e p u b lic a g a i n s t the judgment and o r d e r in r e s p e c t o f the p erson a c q u it t e d o f murder and sentenced to shop—b r e a k i n g and s t e a l i n g . We have c o n s o l i d a t e d a ll the ■ 1 • appeals f o r h e a r in g . . . . . ,/2 - 2 - F o r the avoidance o f c o n fu s io n , we w i l l continue to c a l l the p a r t i e s h e re to as they were c a l l e d at the t r i a l , th a t i s , 1 s t accustd Masho, 2nd accused R aphael, 3rd accused , Yohana, 4th accused A l o i c e and 5th accused P e k o s i . The ls i: and 5th accused were d e t a in e d d urin g the P r e s i d e n t ' s p l e a s u r e , the 2nd and 3rd accused were sentenced to death and tha 4th accused was c o n v ic t e d of s h o p -b r e a k in g and t h e f t . The case a g a i n s t the accused p erson s stan ds o r f a l l s on the e v id e n c e o f P . W . l c h a u sik u , who i s the c r u c i a l w i t n e s s . A c c o rd in g to her account the f o l l o w i n g f a c t s emerge. P . W . l was a f r i e n d o f the d e c e a s e d , an Asian shopkeeper at Njombe. In the even in g o f 25th September, 1974, tha d eceased met P . W . 1 a t the b a r where she worked and made an arrangement with h e r f o r h er to v i s i t him at h i s shop-cum •residence th a t n i g h t . As he was making t h a t a s s i g n a t i o n > a c c u s e d - 1 and accused 5 e n t e r e d the b a r . Accused 1 was I ’obviously known to the dec e ased , who asked accused 1 to accompany P . W . l t o h i s home a t about 11.30 p.m. th at n ig h t. Accused 1 a g re e d . At about 11.30 p.m. Accused 1 and Accused 5 c-une to the - b a r t o ta k e P . W . l to d e c e a s e d ' s shop. On the way they vrsnt to a b a r and the.te met Acdused 2 and Accused 3. Th^ b a r "be lo n ge d to Accused 3. A fter a short in t e r v a l they lv ift f o r the shop o f the d ec e a s e d , Accused 2 and Accused 3 in •Accused 3 ' s pickup and Accused 1 and Accused 5 with P .W .l on f o o t . On the way they met Accused 4 and another person, and they a l l reached the house o f the d eceased at about the same tim e . P . W . l knocked at the door, and t i e d ec e ased came to open i t c arry in g a h u rric a n e lamp. P.V/.l saw Accused 1 jump on the d eceased and sa t on him, Accused 2 w it h a k n ife and Accused 3 w ith something l i k e a panga attacking the d eceased w h i l e Accused 1 was p in n in g him down - ........./3 - 3 - in f a c t the d e c e a s e d ' s hr ad was se v e red from h is neck, Accused 5 k pt a k n i f e at P .u .l's n .’Ck to pre ven t h :r f r o a ra isin g an alarm, and Accused 4 was o u t s id e the shop a p p a r e n t l y on g u a r d . A fter k illin g the deceased the accused persons d e c id e d to burn the body o f the deceased and the shop, and they s p r i n k l e d some f l u i d on the body and the pramisc a and s e t the whole t h in g a lig h t. A fter setting fire to the shop th ey removed the shop con ten ts i n t o the w a i t i n g p i c k ­ up o u t s i d e , Accused 4 h e l p in g in the lo a d in g i n t o the p ic k u p . They took tho severed head o f the deceased and dropped i t in to a n e a rb y r i v e r . They than went to th<-? prem ises o f Accused. 3 and P . W . l was inform ed in no u n c e r t a in terms th at i f she d i v u l g e d what she had w it n e s s e d she would be k i l l e d w it h o u t d oubt, if n ecessary, by the r e l a t i v e s of chi accused p e r s o n s . P . W . l was kept a v i r t u a l p r i s o n e r the uh olr n igh t, Accused 4 b e i n g one o f h er g u a r d s . The f o l l o w i n g .corning ** '« j she was a llo w u d o u t; b u t was a ga in warned o f tho d i r e c o n s a - qUences to h e r i f she would d i v u l g e what she had seen. The accused p erson s gave h er sh s. 100/u and t w o - p a i r s of new khangas and a f t e r some time warned hi:,r to le a v e NjOMbe as i n v e s t i g a t i o n s i n t o the death of the d eceased were t a k in g 'p la c e . P . W . l went o f f , a p p a r e n t ly s till in g r e a t f e a r o f ■' h e r l i f e . She came back a f t e r a few days to c o l l e c t h-sr f' b e l o n g i n g s . In the meantime the p o l i c e came to know th at P . W . l was a g i r l frien d o f the d eceased and were lo o k in g f o r ? h e r . " On h er a r r i v a l back a t Njombe by bus she was picked «*,up- by the p o l i c e . When P . W . l was a ssu re d by the p o l i c e r‘7?' . , t h a t she would be p r o t e c t e d she im m ediately d i v u l g e d wna'c tl'she had seen and known about the death o f the deceased to S' th e p o l i c e . As a r e s u l t o f what she t o l d the p o l i c e a ll the • ' '“accused p e rso n s were arrested and d u ly c h a rg e d . .................... /4 - 4 - f’ . U . l h.-jd o t a 1 1’ d th at a i : t.'-r thu ki 1 Un<| s h e w.is in terror and was under the i n f l u e n c e of the t h r e a t mads a g a i n s t her by the accused p erson s u n til the p o l i c e p ick .d her up and gave h r the u n d ert iking th.it r.ho would I''1 |n o t -i'tn l., was the re a s o n why she d id not im m ediately r e p o r t the tv,utL_r to the p o l i c e . The t r i a l ju d ge , and tht* as.-.ossors as w e l l , a c o f'L i’ her ex p la n a tio n as to why she d id not r e p o r t the matter t>. the p o lic e im m e d iately. The judge h>•1d that. nh<: w.ir, riot m a cc o m p lic e. The t r i a l judge was s a t i s f i e d th a t sh>; •./•as at th; scene when tht: k i l l i n g took p l a c e . P . W . l had known a l l l:h - fiv e accused p - i s o n s w e ll b e l o r e the i n c i d e n t , as t ’n^y ./ere a ll re sid e n ts of Njombe. She spent a number of hours w ith t ’n:i.i, be fo re, d u rin g and a f t e r the i n c i d e n t , and could not p o s s i b l y have been m istaken. She had s iid th a t the deceased ca;*:; out w ith a h u r r ic a n e lamp, and the remains o f i hurtricarv: 1 -. ;. > were found at the b u rn t out shop; she said the a s s a i l a n t s threw down and cut the deceased n * a r the door in f r o n c o f th_- c o u n te r; the p o l i c e found the dead body t h e r e ; she s i d the a ssa ila n ts cut the deceased w ith knivor., the d> e r a I nil red many st a b wounds; she-: s.iid the dec* a s e d ' s h-ad was s e v e re d ; the d e c e a s e d ' s body was minus a head; she said afte r k illin g the deceased and removing the shop goods the accused persons locked the f r o n t d oo r w ith a lock ; the p o l i c e on a r r i v i n g at the b u r n t ou t shop found such a lo c k on the f r o n t d o o r . Accused 1, Accused 2, Accused 4 and Accused 5 s t a t e d th a t th e r e was no grudge between thura and l'.W. 1; on ly Accused 3 a lle g e d t h a t he had d is m is s e d h er as a b a r maid two y.jars b e f o r e the i n c i d e n t . A ll the f i v e accused p e r s o n s p lea d ed a lib is. Accused 1, Accused 2 nnd Accused 3 sa id that, on th<* m a t e r ia l n i g h t LIn.-y were d r in k in g and then l e f t f o r home t o s l e e p . Accused 4 s c id o . » o / - 5 - he was on the m a t e r i a l ni<|ht at h is work, as a watchman ol the B o ra Shoe shop. Accused 5 a l l e g e d th at he was at another p la c e on the m a t e r i a l n ig h t 55 m ile s away. In f a c t Accused 5 s a i d ha was not a t Njombe f o r the whole o f September 1974. The t r i a l judqe re vie w ed the e vid e n c e o f the ,iccu:;i;d [» r:',on:. and t h e i r w i t n e s s e s in g r e a t d e t a i l and came to the c o n c lu s io n , on a c o n s i d e r a t i o n o f a l l the e v id e n c e adduced, th a t a ll th;. fiv e accused person s were l y i n g . We have o u r s e l v e s r e a s s e s s e d the e v id e n c e , and we agree with the trial judge th at tlv. a l i b i s o f the f i v e accused p erson s were f a l s e . As we s a i d e a r l i e r , the t r i a l judge h eld th at 1 was not on a c c o m p lic e. She was merely a p a s s i v e and u n w i l l i n g s p e c t a t o r o f the k i l l i n g , and she was in mortal terror at the t h r e a t s made a g a i n s t h e r . She was in no way a p a r t y to th s c rim e. The t r i a l judge s t a t e d th a t even i f she was held to be an a cc om p lic e, then her involvem ent was minimal and nu was p re p a re d t o accept her e vid en ce w ith o u t c o r r o b o r a t i o n , as i t was so r e l i a b l e and c o g e n t, and would c o n s t i t u t e one o f those e x c e p t i o n a l c as es where accomplice e v i d e n c : can be accepted w ith o u t c o r r o b o r a t i o n . On our p a r t , we are s a t i s f i e d t h a t she was not .in a cc o m p lic e. Like the t r i a l court, we are s a t i s f i e d th a t she was a t r u t h f u l and r e lia b le w itn ess. We are sa tisfie d th at she c l e a r l y saw and knew a l l the accused p e r s o n s , and th a t they p la y e d the r u l e s she s a id they d id on the m a t e r i a l n i g h t . In our view the t r i a l c o u rt was j u s t i f i e d in c o n v ic t in g Accused 1, Accused 2, Accused 3 .inti Accused 5 o f murder. The se n ten c es of death pronounced on Accused 2 and Accused 3 are c o r r e c t . As r e g a r d s the sen ten ces pronounced on Accused 1 and Accused 5, th a t i s , to bo d e t a in e d d urin g the P r e s i d e n t ' s plea su re, we are o f the view th at the t r i a l judge e r r e d . ................ /6 - 6 - A ccording to the modical exam ination r e p o r t s produced at the-; trial Accused 1 Ilasho was a p p a r e n t ly twenty-two y e a rs old as on 7th March, 1978; Accused 5 P e kosi was twenty y .iir s o ld as on 7th March, 1978. The o f f e n c e was com d t t e d on 25th September, 1974. It seems th at the t r i a l jud ge took the ages of Accused 1 as b e lo w e ig h t e e n as on 25th September, 1974, the d ate o f the o f f e n c e , and the same a p p l ie d to Accused 5 P e k osi. However, s e c t i o n 2 6 (2 ) o f the Penal Code r e a d s : "Sentence of d ea th s h a l l not be pronounced or. o r re c o r d e d a g a i n s t any p erson , who in the o p in io n o f the c o u rt i s under 18 y e a rs o f age . . . " This Court has r u l e d t h a t the age t o be taken i n t o c.cccunt is as a t the d ate on which judgment i s pronounced ~ See C rim in a l Appeal No. 32 o f 1979 at Mwanza - Lubasha Maderonya and Another v. R. as on 7th March, 1978, when the t r i a l jud ge pronounced sentence both Accused 1 and Accused 5 wore o v e r e i g h t - en, and thfj mandatory sentence to be imposed on each o f them would be the sentence o f d ea th . We a c c o r d i n g ly s e t a s id e the sentence o f d e t e n t io n d u rin g the P r e s id e n t 's p lea su re, and s u b s t i t u t e , i n the case o f Accused 1, a santcnce o f d e a th , and in the case o f Accused 5, a sentence o f d e a th . As r e g a r d s the R e p u b l i c ' s a p p e al i n r e s p e c t o f Accused 4, we are s a t i s f i e d t h a t Accused 4 was a p a r t y to the ro b b in g mid k illin g o f the d e c e a s e d , as he aided and a b etted the other accused p erson s in terms o f s e c t io n 22(c) of the Penal Code. He was a l s o g u i l t y o f the o f f e n c e of murder under s e c t i o n 23 o f the Penal Code as he c l e a r l y had a common i n t e n t i o n w ith the o t h e r accused p erson s to p ro s e c u te an u n l a w f u l purpose armed w it h l e t h a l weapons, and in the p r o s e c u t i o n o f which da nth c o u ld be expected to and d id r e s u l t . We a c c o r d i n g ly quash 1-ha c o n v i c t i o n o f Accused 4 f o r s h o p -b r e a k in g and t h e f t and s u b s t i t u t e th erefor a c o n v ic t io n o f murder and we sentence him to d e a th . /7 ................. . - 7 - In the r e s u l t the a p p e a ls o f Accused 1,, Accused 2, Accused 3 and Accused 5 are d is m i s s e d , and the se n ten ces o f * Accused 1 and Accused 5 are a l t e r e d and amended as above stated. The app eal by the R e p u b lic in r e s p e c t o f Accused 4 is a llo w e d and Accused 4 i s c o n v ic t e d o f murder and sentenced to d ea th DATED at DODOMA t h i s 22nd day o f May, 1980 A. MUSTAFA ACTING CHIEF JUSTICE Y.M.M. MWAKASENDO JUSTICE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL I c e rtify that th is is a t r u e copy o f the o r i g i n a l ( L. A. A. KYANDO ) DEPUTY REGISTRAR