19810811 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT Df.l.R ES SALAAM (CORAM!.. Mustafa, JoAo, Makame, JoAo and Kisanga, J,. A7) CRIMINAL APPEAL NO. 21 OF 1981 BETWEEN 1. VALERIAN MICHAEL) O O O O o O o O e O ~ 0 O 0 APPELLANTS 2 .. ALOI S Ni\.BhKU ) 3. MATEI KWAYI ) A N D THE rtEPUBLIC o o .. o o o a ., o o o o , ,, .. 0 o , RESPONDENT (Appeal from ·:l:e conviction 0nd .oTntence of the H.>;;ri Ccu,:-': of T-:.'."..Zc7.::;.a a-.. Moshi) (M;::.~lc;.r,::)'2q J"o) (") '-:r-•i tr:..: 19th day of March, 1981, _0::im:trv,: sessions Case No .. 91 o_..f 1980 JUDGMENT OF THE COURT The deceased, i?eter Hamisi; was killed whc-:1 a number of people broks into his house. at abo~t 11.00 p .. m. r, 1e night in October, 1976.. Five persons were charged with mt.d'der at the High Court.. Two were acquitted -·after. a trial, -:ind three persons, the present three appellants, were convicted of murdero · We will continue, for convenience, to refer to Ap~,c:::llant Vale;::-ian Michael as Accused 2, to Appellant JUois Nabaku as Accused 3, and Appellant Matr.'.'. i\.Wi'l:.C'i as Acct::sed 4,. P.W .. 2 Agnes '_-:c.,:ti:'.::00. :.:h::-·~ .:>e \.<:ts '.:he mother of the deceased .. She lived a,: 3:·'.nga ::.n +· ..: . J:<.'.>~·::,rio area, and her house was a few paces £~om that occupi.~d by the deceasedo On the night in question <r.l~ nt': .- ..·d a noise of a house door being knocked and a lot of noiseo It was about 11000 porno She came out and. heard exchanges between people outside the house of the deceased and the deceaseda, There was a crowd of peopleo However, she recognised five of the crowd, among whom were the three appellants. She had known the three appellem:s frorn their childhood; they were all co-vill--,,- ::,_-s" eoooo/2 ) 2 She saw the house door of the deceased being broken down.. She saw that Accused 3 was carrying an axe and Accused 2 and Accused 4 carrying stickso She saw them with others breaking down the door .. She said she easily .tecognised them as there was moonlight and the people had torcheso She started to cry and Accused 2 then beat her on the chest with a stick .. Accused 4 also beat her when she raised an alarmo She heard Aq::used 3 telling the deceased to start praying as the deceased was going to dieo She saw Accused 3 strike the deceased on the jaw with an axe, and sh(! sr1w the other appellants, with several others, beating the? de?C(,ased with sticks. She went across the road to call a neighbour, a short distance away. She returned to the deceased's house and discovered that he had been taken away. She found the deceased lying naked just outside the village shop, dead. • She saw all the three appellants, with others, near the body. She raised an alarm shouting that her son had been killedo Accused 3 threatened to kill her and Accuse.d 2 started chasing her. Accused 2 hit her with the side of a ·panga and she. fell into a ditch., She begged Accused 2 to stop beating her. Accused 4 and another person took off, her khanga and covered the d~ceased's body with it .. ,PoW.1 Suleman, a police offic~r, testified that on the morning following the killing he r2ceived a report from the I village c·.1thori ';ies that the village shop had been broken into and thG thief captured, and that the thief had been assaultedo He went to the site and saw the dead body of the deceased; it was covered with a khanga. He noticed that the body had cut wounds ':'.id bruises all over it. The body was iying outside the village shopa Near it was a box containing assorted shop goods.. According to th,, medical evidence death was due to multiple injuries. eeooe/3 I I 3 There werG a number of head injuries including two head fractureso 'l'he upper and lower jaws' were also frrictured, the left femur was fractured and three ribs were broken, the spleen was ruptured and the left lung had collapsed. Accused 2 who was the village shop salesman and also acted as its watchman showed PoWo1 a broken window on which an iron bar had been bent t9 enlarge an aperture allegedly with a view to gain entry into the shop. Accused 4 told P.W.1 that he, Accused 4 was present_when the deceased was being arrested. These two persons, that is, Accused 2 and Accused 4, were trying to tell P.W.1 that the thief had entered the shop through the open window. However, P.W.1 examined the window and formed the opinion that a Derson could not have entered the shop through the window op_,ning, It was far too smallo While he was still tli:-,c . he saw P~W.2 arriving there crying and claiming that the deceased W,"s not killed near the shop but at his house, about 400 paces awayo PoWo1 went to the house and examined various places where he saw, about 40 paces from the Arusha/Kibosho road, a pool of blood, and five paces from it, a club stained with blood, and another 8 paces away, another pool of blood. He saw that the deceased's house door had been removed by its hinges and was lying 7 paces from the houseo He saw traces of blood just outside th,..:! door frameo All the three appellants, with others, were with him during his examination of the areao It was clear that the dece~sed had been killed or attacked at his house and his body was dragged to the shop to simulate ct shop breaking and his arrest and apprr:::hen.:;ion nnd his death resulting therefroma Another witness P .. W.. 5 Anna, a neighbour of the deceased, said she heard an alarm on the material night, and went to answer it. She said she met a number of people and she was chased away. 4 she said "he rr.:!cognised Accused 3 and Accused 4 as the persons who chr1.sed her away., she was in fact h1t. on the back with the side qf a panga. She had known Accused 3 and Accused 4 since their childhood., P.Wa~ Pius, another neighbour, i3.lso answered an alarm, but it was much later$ at about 3.00 a.m., in the morning. He saw a number of people at the door of the deceased's houseo He had a torch a~d tie flashed it about., The peopl,e there flashed their • torche~ at him and he was ordered to go away, o~herwise P.,W.,8 woul J;,e killed. It was Accused 3 who told him that i:f he did not go away he would be killed. The deceased was a notorious thi•2t', having been in and out of prison fr~quently., He was perhaps not very welcome in the village ,..,,here J-:- 1-Jas staying. In his defence Accused 2 said that he went to the shop in the morning and found a group of people gathered ther,10 He saw a broken window in the shop and a dead body lying outside i to He said Accused 3 was there and Accus.ed 3 told him that the:: deceased was caught stealing. He denied killing the deceasedo Accused 3 s~id he saw the dead body of the deceased when he .vi•sited the shop on the material morning and he was shockedo He said all those witnesse·s who allegedly identified him as one of those involved :i.n · the attack on the dec,eased had told liE:so Accused 4 also said he only saw the dead body of the deceased when he visited the shop on the material morning.. He denied any part in the attack on the deceasedo The trial judge believed the evidence of PoWo2 Agnes; he found h(~r truthf-ul and reliable. He also /found that all those •.,11·,0 took part in the attack on the deceased a~d caused his death ac t.~c with a common intention. He found that the three appellants h2d attacked the deceased and caused his death and he found each of t'.,-:, '. -r.: . 0 •• 0 ./5 .. 5 guilty df murdero In our view, the issue at the appeal is that pf .identificat~-')Dn Like the trial judqe, we accept the evidence of P oWt 2 Agnes as truthfµl, she had had ample opportunities of identifying the e1rr; :! appellants since she knew them since childhood and ,she: came in contact . with them at the.material night. \ Accused 2 beat her with a sticiJ<, so did Accused 4a She saw 1 • :Accused 3 with an axe and saw him actually striking the deceased with it. She could not have been mistaken in her identificationa She saw these three appellants at the house of the deceased and at the site of the sh~~ where the deceased's body was taken. PoWoS Anna corroborated her as far as Accused 3_.a-nd Accused 4 were concernedo PowoS saw and identified· these. two appellants when she answered the alarm on the material nighto PoWo8 stated that he was threatened by Accused 3 tiv:t nicht or early morning. P.W .. t had testified th2t Accused 2 cmd ,\ccused 4 had attempted to mislead him to make him believe that the deceased was arrested while stealing and ki'Iled in consequenceo We are satisfied that P .. Wo2 Agnes' identification of the three appellants, Accused 2, l~ccused 3 and .A~cused 4 was amply corroborated _by other prosecution witnesses, who were, in our view honest and truthful. Like thextrial .judge, we believe that all the three appellants were principal offenders of the offence in terms of section 22 of the Penal Code or had acted with a common intention. They had killed or Joined in killing the deceased, and they did so with malice aforethought .. •ooooae/6 6 -· We are satisfied that the three appellapts were properly convicted and their appeals are dismissedo DATED at DAR ES SALAAM this 11th day of , .ugust, 19810 i,o MUSTAF/1. JUSTICE of )\rPEi,L L .. Mo I"iAKAME JUSTICE OF APPEi,L Ro H.. KISANGA JUSTICE . . OF. AP.PEAL - certify that this is a true co.fy of the original.. I.