19820820 TZCA Dar es Salaam2

) j IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NYALALI, CoJo, MAKAME, JoA., AND KISANGA, JoA.) CRIMINAL APPEAL N0.7 OF 1982 BETWEEN SAIDI KATULI ALLY APPELLANTS fV'tFAUME MLEYI AND THE REPUBLIC o o o e o o o o 0000 ec,o G • o o o • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Mtwara (Mushi, J.), dated the 6th day of October, 1981- in Criminal Sessions Ca~e No. 25 of 1980 J U D G E ME N T MAKAME, J.A • . In the morning of 20th September, 1978 at Mahumbika, on the Lindi/Masasi tarmac road, PWo3 HAMISI SELEMANI found the dead body of his younger brother, SWALEHE SELEMANI who was, until his death, employed by PWoS FATU KASEMBE to sell palm liquor at the latter's shop. The appellants were six days later picked by the Police and, following their being charged with the murder of the d~ceased, they were convicted and duly cbnbjnced to death by the High Court sitting at Lindio They have appealed to this Court and·Mro Raithatha, le~rned Counsel, represented them. Mr. Kalunga, learned Principal State Attorney, appeared for the respondent Republic. The evidence which the learned trial judge relied on to convict the two appellants was given by PW.6 SALIMA MOHAMED, who told the trinl court that the appellant ALLY used to be her boy-friend but that they had already folded up the relationship at the time of the incident; and the evidence of PW.7, a man called RASHIOf PAMUI MPWAPWA. Mr. Raithatha submitted before us that PW.6's story was necessarily incredible and also in clear conflict with the testimony of PWe7o He ~urther submitted that, even if it is relied on, the evidence of PWo7 would not properly lead to convictions. Mr. Kalunga expressed the view that the case was "rather tantalizing" and confessed to being "not at peace with myself". • ••• /2 2 In effect, he did not support the convictions. The two gentlemen assessors who sat with the· learned trial judge disbeli~ved PW.6 and PW.7 and expressed the opinion that the accused persons were not guilty. We are ourselves of the considered view that the convictions are untenable. PW.6 told the trial court that after leaving PW.S's pombe shop that evening, she went home and, on reaching there, she found that she needed some snuff so she went to a neighbour's house to buy some but she found the owner of the house already asleep. She found the door of the first appellant's house open and she was able to see that the first appellant was in there. Sho _entl:.1.:.;l the first appellant's house and sat down. She did not at all speak to him. Shortly after she had entered the house, PW.6 saw the deceased ent~ring the house and then the --deceased immediately left the house without saying anything. PW .. 6 went outside and while she was stand"ing there she saw the -second app'c!llo.nt appearing at the scene where he was Joined by the first appellant and the two followed the deceased. The first appellant was carrying a big knife while the second appellant had a sticlc. The witness SALIMA suspected that there was something amiss so she stealthily followed the trio. They followed a narrow path and when they reached a spot where there was a big cashewnut tree, PW.6 saw.the two appellants roughing up the deceased who was very drunk. The fir~t appellant seized the deceased by the neck whiie the second appellant held him by the wrist. The appellants kndcked dowh ttte deceased ahd the witness fiea when the appellants noticed the presence of another person. The followirlg morning was when PWa6 heard that the deceased was dead but she did not __ ,relate the episode to the Police until later. PWo7 told the trial court that he was at home that evening and when he wanted to go to the latrine at about midnight, he decided to sit on a stone from where he was able to see PWo6, the two appellants, and ~1e deceased, passing by and conversing about liquoro The following morning he heard of the deceased's deatho We respectfully agree with Mro Raithatha that PW.6 gave a highly improbable account. Indeed~ the learned trial judge himself experienced "considerable anxiety" over PW.6 1 s evidenceo For ourselves, we find it incredible that PWo6 should enter the house of the first appellant, a man who was no longer her boyfrien~, so late at night, park herself there, and just keep rnurno Not less incredible is the story that the deceased came in and immediatP.ly went out again without uttering a word •. 0 0 0 0 /3 • 3 ~.,.. ~,~ •;,., n.,-, ,~ '! ., '• • !1• ., ; .. "'. ,..i.. .,:.,. , ·• • , .......,. We find the evidence of PW. 7 c1early-ocld·; - Wf:'! ·frtid it hard .. •"' • I . 1, ... ,1'- ~' • -~~• ,L• ,. • "1::J."t • ,,, 4!3'• ~ • -. ~ to believe that so late at night he should fetch some water, obyi9usly intended _for: .ab:!,.ut_ion, an~· then, instead of going to the latrine, sit down oh a stone, which was the vantage point from which he says he saw the four persons passing by. Indee9, from the drift of his account, he did not go to the latrine even after that. We note al so :· · that wherE!as PW. 6 said that she followed the trio at a distance, and un0~s~rve1~ PW.7 said PW.6 was walking together with the three persons and that the four were talking about liquor. The evidence of PW.6 was clearly suspect, the testimony of PW.7 unworthy of belief, and the two account~ ·_,.,,_r.-, ,-.r:-i_ 7 '-•,:e, one With the other. We are unable to sustain the co;·1v.i.ctio:is which we therefore quash. We ·se~ aetde t;he sentfmces of. death -and order the immediate relea&e of the two ~pp~ll~nts unless they are otherwise lawfully in custody. F .-t. NYALALI "· ·1• ... ...... ., ... CHIEF ,.JV-STICE 't." r I . ~ '·· .,... . , .. L.M. MJ\KAME ,JUSTICE OF APPEAL R.H. KISANGA , •1 -;,JJ./.STIC1E OF .. APPEAL : ,... \,11 • I •• . -·,.,·v- ,.,;.,. ·- lit~· . . . :-',..;'"; ·•·· • .1. • ·: ... ! ~ .... .: , , r I certify thai this (is 1,~-~-. ~'J l ~~ y 'i I • ~ , , I,... ,~ 1 I • . -. . .. '' t - .-· , . r· . . •·•A_,.1 ___.,.~- ..... 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