19841124 TZCA Dar es Salaam5

IN THE COURT OF APPEi,L Of T;,NZANI., A'I' MWANZA CRIMINAL AP.PEj1.L NOo 28 OF 1983 B E T WE E N Mli.TIKTJ s/~) iIUSEi\JGO c o o o o o o ,, o o • o o o o 0 i,PPELLANT A N D THE REPUBLIC o o Ct O O O O 0 0 0 0 RESPONDENT (A,::ipeal .,_ . from the conviction, I of the High ~ Court of Tan~ania at Musoma) (Munyer0,, Jo dcited the 1st clay of June, 1983 JUDGMENT OF THE COURT ThE: appellant Matiku Musengo is appealing aqainst his convictioD, for murder and the sentence of death imposei by the High Court sitting at Musomao Th2 cas<2 for the prosecution was bused on both direct and circumstcmtial evijenceo There was th<= evLlencc of Nyamboge Mwita (Po'c'fo1) 7 the eye-witness, to the effc::ct that the deceased had callc=:J c1t her house to ask for water and that 0,s he was leavin(J the h::)Use, the appellant suddenly attacked him at the door, cutting him with u "sime" on the heado The ap,1ellant who was well-known t ~- the wit:1.ess r0,n 1 ·away 3fter the attacko The incident happened in bro::d rlay light at about 3 porn. Then there w0,s the dying declaratio:1 of the deceased o After the dececi sed was thus wounded, he manc:.ged to make for the home of a neighbour, one Alex Musoma (P W02), v;here on being asked by his uncle, one M0,subugu Sanyu 0 (P~Wo3)~ he st2ted that he had been 1,,1oun:ied by the appellunto The 1eceused died some time later at, the home of Alex. l\.n-:l lastly there wcis the police st"J.tement of one M:busiro Bukobala who ✓ 0800/2 1,- 2 :r died b 8 f.ore she could testify in courto In her stutement which vPS rE'.:cei ved in evidence under the provisions of section 34B of th2 Evidence Act, she stated that on thQ :iay of the incident as she c::1me out of her own house she saw the deceused with u cut wouni, o.ri.:-J that at the same time she saw the appellant some fifteen paces away hol,jing a "sime": and beginning to run awayo The appellant's rlefence consi,sted of an alibi in which he claimed that on the material day he was at his home in Masururn Village, some twenty mih~s ciway from Sirori Simbo. where the incident to0k place. In support of the alibi he called Mutaki Mgo.ya (Do Wo 1) who stated that on the do.y in question he S3W th-~ appellunt at Musurura Village in the morning but that he did not see him again aftor that. The trial judge sitting with his assessors accepted the prosecution evidence and, rejected -;_;he defence storyo Mr., R.W.G. Rugarabamu, the learned counsel for the .:npellunt, submitted before us that Nyamboge, :the eye-witness, wus unreliable because she did n ,t roise an ale1rm during the uttuck. But we think that this criticism is not quite justified. For, the witne:ss stated thot ofter the appellant he1d· gone uwuy followinq- the attuc}· ' they, meaning the witness and some other person or persons, raised an alarmo The f.:ict that she did not raise the alurm before the appellant left tho · scene could be explainE..>d on the basis thc1t she feared thut the ap,Jellant who had just wounded the deceased and who w.:is still armed with the "sime" might turn on hero Refering to the dying 1eclaration, the learn2d counsel conten::ied trot it is not true that the deceased made any such declarution, because according to Alex who saw the dee.eased first, • 3 I the ieceo.sed could not talk, so that the deceased c0ul1 nc,t I I hn ve subsequently talked an·:i mude th~ suid ; declnration t0 Masubugu as cluimedo In short counsel submit~ed that .when Masubugu came to I i I I I; the scene the decease::l was already tuo w'eak to be able to talko I ,: , I II 11 This same argument was 1.aised at the/ trial' where the learned l' :i I :1 judge, after giving it due consideration; rejecte<i it an-! we \i . " think thc1t h.:i was entitled to do soo I For,lj'nn.• injure:i person I I ,' in the condition of the deceased mny be uno.ble to talk at one I ,i I'I 1 moment but can tolk at another momento It d oes not seem to follow I I! I 1' ' ,I necessarily tho.t once the deceased ~as unabJ.:e to talk when Alex • I :1 JI I • came to the scene then he remained throughout unable to talk until he died. I We are of the view that the leo.rned trial ju1ge could 11 1 • I j' 11 '1 have found, as he din, that the dedeased,ldid make a dying declaration i :!I ' to Masubugue I As to the state1 .. ent of the witne ~s ''who could not in court before she died, Mro Ruga~abi:imJ,/, in effect, submi tte-:i I I/ 1 1, 1,' ;i , \ testify that the maker of that statement, ~ike ~y,a1:1boge~ the eye-witness, I :1 , 1 was bent on mo.king false all<-~qations in /·,order to implicate the . j j ,; '· appellant, atti that the t.i:;ue position w~s that the appe,llant was ! Ii'. ,r -"' never at the scene of crirneo We are unc:1bl.e to accept this . There is nothing on I the r ~co.rd und counsel has 1 proposition.. i ,, ,1 I ~i suggested no reason why these witnesses should falsely mo.ke I . 11 , : •i I such grave allegations against the a1::ipel1anto I ,1 1 C onsi'd ering . I t h e case as a whole, we think that the trial :, ,' . . I fl ,. judge rightly accepted the prosecution revi-ience as he did, and I !1 :1 that once he did sr) the appellant's alibi cannot have raised I II I any reasonuble doubt as to his gJil t 0 i '1 I Ii '/ I o&oo/4 I 4 ' In the d.rcu.ms brn~es ' the app-2al is,devoid of me:clt . _____ .... ---... 1 . ,/.., (. .' ... an'.i is ucc0r~,i'n~J.ly -dismissed". ;• . DArE!) at, MH~NZA this 2.4th day of Noyember~ 19840 rl I 1. F:o Lo NYALALI CHIEF jusTICE ' I' j ,I i' Ro Ho KISANGA ---= ---- JUS'rICE 'OF] ;.._PPEAL is a tr1u8,.-copy' / b-if the original o i _,..., ..... ·,, . - - - - - __._____>;;;v~\~/ 6.-.-- 11 os·· 7""".... ...., ...• ..::• ,:i~1 "' T H. ,J.. I i 3ENIOR, DEPUTY REGISTRAR . i 'I t '