19831129 TZCA Dar es Salaam

coli:~J.' OF APPEAL 01'' TANZ\NIA AT DAR ES Sil.Li:,i~~ CORAM: NYh.LALI, C.J., MWAKi.SENDO, ..Jo_A. AND KISANGA, J.A.' ·. CRIMINAL APPEAL NO. 31 OF 1982 BE'I\'JEEN SAIDI Ml1TANDIKO AND 3 OTHERS. • • o e • • APPELLANTS AND THE nEPUBLIC. • • • e e O O • e e • RES~ONDENT (Appeal from the conviction of the High Court of Tanzania at Morogoro (Hon. Makame, J.,) dated 3rd day of November! 1978, in Criminal Sessions Case No~ 16 of 1978 ,.. ---· ------------- JUDGMENT OF THE COURT KI SAN GA, -~_,·, .:.;:_ This ,,ppeal ."is against conviction for murctel and the $entence of death ;passed on the four appellants by the High Court silting c=,·f..; Morogoro .., -....r:: ·'.··;,..., ._·.· ... Tr:= main facts V.J.. .... t .. ..:- ... .: ::: were as follows: 'rhe deceased Sever~::, Kandege was employed as ·a watchma.h -to guard 9 t night the village office of the Mtimbira Division_ in Mahertge. He was provided with a gun and ammunition for the.-purpose. There was in the offic,- a Eaf'~ in which the villagers' moneys used to be kept. The sa:e was Of:?.r.ated with two keys one of which was perm.;mc:·, ~::.·:z· k-ept by the village tl'ea&urer while the other was Kept by a vilf ~ge chairman in rotation aftP.r every onP. week. The pppellant Saidi· Matandiko wns the vil:::·age chairman on duty holding the key during the. week of the i: =idcnt. The other ~ appella!"'t. \J(e~e. ordi >'\or:: ·1illc.gers being either peas!3nts or· local business mt=n, On the day of the :anciden1;:, which was a Saturday, at the end of th:, day's _work both the treasurer and the appellant Saidi retired into tht, Sare i.he sum of Shs. 47,941.50 after which th-:..y locked tJ')e safe and went away. It would appear that the deceased .:::-eported 'for duty in the evening of the dayo The pros_ecution alleged -that i.n ·that same ev.ening the deceased was seen in the company of the four appellants wall<ing towards 1• - 2 ... a certa1,1 valley shortly after·whic::h a -gun 'fire was heard l\nd the body of the deceased was retrieved fro.m the said- valley some· two days later. The deC.,ea.sed had sustained .an extensive wound whieh the doctor said c;ould have been caused by a b~llet... · .Death resulted from such wound. The-village office whe1-e the deceased used·to (JUaEd was found open ·and the gun which the deceased used for. _g.uarding· the premis.es .wa.s there. There- had been att(:mpu to b~eak the safe b_y ~nterfering with the key hcle corresponding to the key that .,,was held by the treasurer, but the attempts weref unsuece~sful so that on opening the safe the money in it was found to be intact. ,-1.lso found lying around in the office were a chisel and · an irop bar which appeared to have been used in attempting to break the safe and which the prosecution elleged that they belonged to the appellant Hamisi Kamotae The prosecution took the view that the appellants eliminated the deceased and then attempted to break the safe in order to steal the money therein. In their defences the appellants each put Up an alibi and, except the appellant Hamisi Kamota, each called a witness or witnesses in support thereof. In c::anvic:-ting the apf)ellat\,ts the learned trial Judge relied greatly on the evidence of P.W.4 (Francis Ipande.) This witness claimed to hav~ identified the appellants as being in the company of the deceased th~t night and walking towards the valley just before the gun fire 'was heard. Acco~ding to the witness he identified the appellants clearly because there was bright !'!tOon light and he was $Ufficiently close to them; at one stage he \ elaims he was only ten paces away from them. There was also evidence to show that the appellants were villagers who were wall known to him berore the incident. But Mr~ Ng~sala who argued the appeal before us submitted that th~ evidence of P.W.4 was unrali~blo such that M conviction eould safely be based on it. __ We think that there is merit in this submissior1., :t• ' P.W,.4's wife testified that on the night o_f the d.ncident P.v~,4 returned home and told her that he· had seen a group of people that ,night, ..mentioning only Kapanga and Kandege., Both the prosecution and the trial judge assumed that the witness wa..s refering to the appellant Melkiori Kapanga .and the deceased SGverin Kandege • ........ • /3 •• j Even taking the view that. th,1t assumption: was borrect the question which arises :....::: if F.,w.4 identified the people in the group as he cli.1::_::ico .".1 • ..._ ,L.iL'"I: why did he mention only two names instead of f~·..-c:,, Addressing himself, to this question ' the learned Judge s~id~ "Admi tt:.:dl~ J:p,-,:·.,V 1 s wife talked of her husband mentioning o:::'-i 0n..2 of the accused being.with· the deceased but I do not find that .·this means he did not see the otb.:2 s., Ch:1nces are that Ipande talked of 'Kina Kapang:1 ! c).!,d his wife had neither reason no curiousily to p.:;ob8 him further." With great respect to th~ learn ,d Judge, there is no evidence to support the view that P.W.4 talked of 'Kina Kapanga.' P.W.4's wife categorically stated U1at her husband mentioned only two names. But even assuming t:1at PoW.4 did talk of 1Kina Kapanga' does this ·necessarily mean -that he was able to identify all• the people in the group? W1c: c.:cc urv.!!:lle to answer this question in the affirmative. But what is even more serious is this:- P.W.4 claimed to have witnessed the inci.1e?•i;: on Saturday night but he did not· disclose i t until Mor.d,..:{6 'l'!,,-) question is why did he take so long't In answ,,i:.: ·co :c .6 qu,;;::;t:lon during cross-examination ~.W.4 is recorded :.>.s 0 I decided to :i.;w01,':ignte before raising the alarm. I decided to 1'~'., ..:p ct.1.:et until the Police arrived. I made no r( :r;c;:-·i: uf what I had seen until after the body had be...,n d:'.s:-:o'-''".t":Jdo We were told not to, start talking. ':lntil :i.::"-;·.Jst.'.gations had been completed. 11 If the witr.-?C"'! da1TR-\ ~ -~w,ttiheld the information pending the arrival of the· Polin.c, t:'1L-.1...:.c, is the evidence of Alen Nyakungn ' (P.W.9), Bakari Shabani (P.W,,14J and the appellant Saidi Matandiko to the effect that ""h·::i Police visited· the scene on Sunday when the safe was opened in·their presence. Then why did he not disclose the informutJ on to +·.:•. , PoHce on Sunday? Why did he have to wait until Monday·: His claim that they• were told not to start talking until invcsc·i.g::1tions had been completed does not make sense because su-:.-.h in:L ..Jr:r~'1tion w~s clearly necess,:1ry for investigation into '.::1is c,.sc. The witness who was a Field Assistant would be suffi.·.•~.er:t1.y intelligent to know that. v <. r • O .(4 •• I• . - 4 ~e are of the settled view that the evidence of P.W.4 ought '.to have peen subjected to furtl,_er and. closer scrutiny before it wns accepted and acted upc:... The prosecution. theory was that thr~ appellants ~hat night ~ured the deceased away from his place of work at t't\e village office into the valley and killed him_ there. If thJs iii .so one would also 1::!Xpect the dec0;:;ased to be c 9 rrying his gun along as he was being lured away at night.. But P.W.4 in his .testimony claimed that when tie saw .the dec,:i'\s,,d and the rest of the group walking towards the valley that night thE,'l deceased was not ~arrying a gun,_and indeed he did not notice a gun. What is more, the deceased' s gun was found at his place of work at the village office. W~ think that such events do not seem to bear out ' the prosecution theory as set out above. In convicting the appellants the learned Judge ~lso relie<1 f..A the evid~nce of missing bullets. He found that the appeaian'C fa1di Matcmdiko had failed to acc0,mt for two rounds of amrn14:r;tlt;{!.~on ~hich the village treasurer had issued to him for use ag~(j,:~~~J, ~nimal._s whicl). df~stroyed crops. The ie.3r·ned Judge further fou~~· i~at one· of- those bullets had been used to shoot .the deceast31 '-," ,.~~. ,t • • ~1,th.: But it seems t~~t thtre was not sufficient m~terial ·-eo· 1&.\llf.a;n S:~1' f~nding. In the first place there was no cle':lr ~vjcde~e0 a~ to the type of bullets which the appellant Seid& .. tver! ,,om the village treaS\lrer" But WO_J:'Se still is the 1f(IJ· ~at; t~ere was no shell reccver~<l following the shooting ~~,-• . , de,ea~,ec1J ~o that there was no link between the fatal but:~;~1,!e) · e1 :th() rounds_·ehich were issu;~d to the ap;Jellant by th(~ village .eils,are~~ I1; 1s .true that c!urinc_; ,: post mortem examinat!:@n ;pere was· recovered from the qe..ad ho,dy an object which the . doctor. ,· described as "a small f .' .. :~ ~· : .11", b~t no evidence ,: : · · tsoe;ver was adduc::e1 to rt:lo.:':e sv.·c.» object to any rounds isst!ed ·to the appellant by the village treo..s1_·.rs:.r or by,. any other person t1:or athat m~tter. It ia, therefor~~ a..pp;;-,,rent that the evidence o~ the rnt·ss1ng aminuni tion was of l i t;t, k or no -value at all and it ~)Ught !'lot to have been re lied \.Ljl&t-.- . - 5 - ' ,· 'l'he learned Judge further relied on the evid~nce of the • chisel and th(;.; iro~. bar foun 1 in the village office by finding 1 thn.t those in_struments which hBrl been used in attempting to force the safe open belonged to the app~llant Ha~isi Kamota. This appellant denied ownership cf the instruments. Yet the instruments were common n::·ticles with no special or particular marks of identificat:.onv T:H.1t is to say they could be owned by anyone. Quite clearly th(JSe instruments could not properly 'be considered as providing ,?videnc\..: to implicate· the appellant Hamisi Kamo'I;~ with th2 death;- or t!.e circumstances surrounding the death, of the deceasul. Or..ce_ again we think thnt that piece of evidence was wrongly rcl~e.d upon in convicting the appellants. And finally, Couns8l for the appellants cont~nded tha~ the learned trial Judge failed to consider the appellants' defences _of alibi;. This complaint se.:~ms to be justified. The \earned trial Judge in his judgment ma.de reference to the· appellants' alibi only when he was summarizing the evidence lo,t both side. But when coming ·to decide on the guilt of the· appe.llants he ma~c no metaion of the ~li bi at all. With re spect.J this was ·wrong. ; Where the defence of alibi has. been raised, (She· eorrect approach is to view the case as a whole and see whethe1f ••e a~ibi c,asts any reasonable doubt on the case for the pr_osecution •. Mr. Uronu appearing for the respondent RepubU.c •Ubmitted that by not refering to the ~libi when deci~ing oft the question of guilt, the lenrned Judge; by necess:,ry impil~adon, ,,ejected that defence as being untennble. We are unable to agree. Consider the case agai1;st the appellant Saidi Zidadu, , for instance. His c~nviction was bnsed ·solely on his being identified by P.W.4 as b ... ing in th(~ group thu'..: 1'.'.C.::c,mpanied the deceased on tht fateful night. There was no oth~r evidence whatsoever tending to implicab.; lLis app,. !l:.a~t ... : in his lefence of alir~ , '.:'.:. ., -. ' · '.:. the tiMe of the alleged shooting of t:_~ deceased.' whL<-h was around t p.m~ he was at a village meetingo He called iwb witnesses D.W.4 and DoW.S \,·ho f·..:lly suppor'..:Ld him~ ·DoW.4 wa.s the· cell - leader "- t whose ho: .. c the mee..th-J ,~·::is held• and .D ~Y. 5 was t.'1·~ ·.1, o•ee/6 ... - 6 ' appellant's brother. The learned Judge, properly directing himself, should have consider'ad \'1hether. the appellant I s alibi, supported as it was .by witnesses4 was Swff1ciertt to tast any reasonable dou;)t on the, reliability of the evirler.ce of P .w .,4 as to the identificntion of the appellant on the material night •. This, however, the Learned trial. Judge did not do. Viewing the eviderlce on rec'ord, we find no good reaso'n for thinking that had he p:r'ope.r;~y direc.ted himself he w0uld have necess~'tily preferred the viord cf P.W~4 to that of the appellant and his- two witnesse~~ . : . In the result;· we are tatisfied, ~hat the proseb..iticin evi'rience· I . . . was not suffi<:iently cogent ~o w~rr~ht convit::t!on. Thi'St C::';)Upled ~1th the failure by the learned trial judge to g1Ve sliffi<!ierlti (;Jr any _consideration to the appellants' defences of alibi, necessarily re.nders the conviction of the appellants unmaintainable. Accordingly we allow the appeal. The conviction is quashed and the sentenc.e-s·....:a-r,e_ set aside. The appellants are to be-released t·~, ,,..~~- P 2 A ·forthwi:th f-unless th@~,are otherwise lawfully held_ .. ·in custody-• . · "{ / / O .4~ --~·\ . ' ' f" I, . ,.;~ " \ . _,},, \ /tn{TED-ii,:ft;)jA,i(tEs S~\LAAM this 29th day of November~ 1983. I ci:/ (;r,~;·.,,·\·~ ;:\:..-:;~~ . ~~ i \~,,I'; . . \]L:_l\,,j' - I /~~ \ •":, · / / • L. NYALALI "--"-..._·t ------ .· / ~:::__,_..,:::;:;; CHIEF JUSTICE Y• M. M. JUSTICE OF APPEAL .., __ __ M',\TAKJ\SENDO a- ¥a \ l l j