19841124 TZCA Mwanza5

IN THE COURT OF iPPEiL OF TjNZANIA AT MWANZJ- (CORIM: N ala1iC0J, CRIMINAL APPEAL NO0 22 OF 1983 BETWEEN THOBLS BiSULI NTINI 0 APPELLANT AND THEREPUBLIC 0 0000o0o00000000000 RESPONDENT (Apgeal from the coriviction of the High Court of Tanzania at Mwaoza) (M'aikasu, J0) dated the 29th day of April, 1383 JUDGMENT OF THE COURT MUSTFA , J.A. The appellant, with two other persons not before the C our t, was alleged to have broken into the house of the deceased on the night of 12th August, 1980, at Isangijo village, in the District of Magu and there cut the deceased to death0 The deceased Ued shortly after she was attacked0 The appellant was charged with murder0 P0W01 the daughter of the deceased, was in the house when the attack took place0 P0W01 herself was quite seriously injured on that night, as she herself was a victim of an attack by the appellant and his companions 0 The appellant was the brother of the husband of P0W01, and the said husband had died a short time before the incident0 P0W01 had alleged that the aopellant had blamed her an the deceased for the death of p 0 :'1 0 1t s husband, and believed that P0W01 and the deceased had bewitched P0W01's late husband, causing his ieath0 PoW 0 1 testified that when the aDpellant nd his -2- companions broke in' they lit up the place with burning grass taken from the thatched roof, and by the light so produced she saw the three persons, but she cou],d only identify the appellant, whom she knew well. She did not know the other two, and was unable to identify them. She alleged that she was the first victim of the attadk, being cut several times on the left temple,. left shoulder and the back of her head0 Then she heard the deccacd being attackel in the deceased's room. P,W.1 ran out of the house with her children. She sought refuge in a neighbour's house She was positive she had identified the appellant as one of the attackers. Later she went back to her house and found the deceased badly. injured. P.W.2, the daughter f P.Wo1 9 ws also in the house on the • . material night. She also alleged that she i'Jentifed the appellant as one. of the three attackers. P,W.2 herself was not injured, as she managed to run out of thehouse. Th appellant put' up a defence of alibi. 0 He testified that he was asleep on the night in qtestion., hard an alarm, got' up and went to the place from which the alarm emanated. 14hile S there the appellant was arrested, after P.W.1 had told the people present . that the appellant was one of the attacker. The appellant's wife, D.W2, gave evidence supporting the appellantl's testimony0 D.W.3, a co-villager,.. dsp supported the appellant's alibi6 D.W.3 stated that he heard the alarm, atd in answer was proceeding to the site from which the alarm came, and on the way saw the appellant emerging from his house and together went to the sc'ene. At the ehd of the evidence i the two assessors were not satisfied. that P.W,1and,W.2 we.e credible witnesses or had properly identified the appellant and were of the opinion that the 'appellant was not guilty, of the offence charged. The trial judge • '. S L 3-. disagreed with the opinions of the two assessors, and found the appellant guilty of murder as charged and convicted him • accordingly 0 Mr0 Kahanqwa, for the appellant, has submitted that the trial judce had erred on both facts and law 0 The appellant had denied that he believed that his late brother, P0111's husband, had died as a result of witchcaft practised by PW1 and the decease -J0 The appellant testified that he knew that his late brother had died of Tuberclosis, a disease from which he was suffering0 However, the trial judge on this aspect of the case sated, inter ella, in his judgment as follows:- "While I would not doubt the accused's knowledge • that his elder brother had died of a T.B. disease I am far from being persuaded that the accused is the sort of liberated and detribalised person who • had rid himself of the common beliefs in witchcraft obtaining among most of cur people as the cause of all our vicissitudes, underlying the cultures of almost all African communities of which his community, the Sukuma people of Magu district, is0 It does not therefore come as a surprise to me that the accused could still entertain a belief that his deceased brother had been bewitched by somebody, which suspicion • is said to have fallen on POWO1 and the deceased 'I 000 0 That would seem to have constituted motive for the appellant's attack on the deceased0 Those remarks by the trial judge would perhaps be an admirable expos of the anthropological background of wjtchcrft belief In certain parts of Tenznia, but we think it was highly speculative as It related to the appellarft, as there was no evidence at all to show that the appellant had believed in witchcraft 0 That was clearly prejudicial to the appel lent 0 Mr 0 Kahangwa also challenged the identification of the appellant by both P0W01 and P0W02 0 As to P0W02, there was evidnce that she was unreliable0 P0W.2 admitted that she did not mention -4- the name of the apellant to Maduka after she had escaped out of the house, a rather unusual circumstance. P.W.2 stated that she heard P.Wo1 shouting or crying out an mentioning the name of the appellant while POW. I was uner attack; 'ihereas P.W.1 testified that she made no noise while she was being cut 0 P.o2 also alleged that she sow the deceased being speared by the apellants while she was at the outside door, which would seem to contradict the evidence of P.W.I. Mr0 Nclolezi, for the Republic, conceded that P.W.2 1 s evidence of identification was open to question, but relied on the evidence of P.W.1, which he submitted was cogent in itself and needed no corroboration 0 However, in our view 9 the judgment in this case suffers from a fatal defect. The trial judge, in dealing with the evideece adduced at the trial, concluded that the matter in dispute was that concerning identification 0 He then considered the circumstances surrounding the identification and he concluded that the circumstances were favourable for identification or. the material night. He also dealt in great detail with the credibility of P.W. 1 and P.W.2, and dealt with the objections raised by the assessors and defnce cauesl on that score. In doing so, he speculated on the appellant's belief in witchcraft, of which mention has already been made 0 And he ended this appraisal as follows:- "This in fact goes to len:1 support to P,W.l's claim that such attack was engineered by the accused following his earlier alleqations that she, toqether with her monther, the deceased, had bewitched accused's elder brother, P.Wo1's former husband. Hence their being the target of such attacks.". He then continued:- "Let me now turn to the defence case0". He proceeded to deal with the plea of alibi. He said apropos this matter:- 0 0 /5 I -5- - .4 "For it is not in dispute that following the alarm raised consequent upon the attpcks made upon P0J1. and the deceased the accused was one of the persOna who respondel to such akt ack. Th main issue is 11 whether in the light of the dvi-dence adducei on the orosecution side, the accused's allegation as corroborated by D0W.2 can he considered to be reasonably true0 And I have :ome to the conclusion that it is not0"0 He gave r0asons for rejecting the appellant's version0 He believed (1) the. evicle.nc ,e of P0W1 and 20 70J02 was true; (2) that as the appellant an-I the deceased lived close to each other there was ample opportunity for the appellant to have killed the deceased, run home and changed and then to answer the alarm and return to the scene0 That would be to the advantage of the appellant, and as prudence would have dictated.0 There was absolutely no evidence however to support that supposition; it was another speculative exercise on the part of the trial judge0 Two facts stand out from this 0 The trial judge had concluded from the prosecution evidence that the appellant was- properly identified and therefore he did not think that the was alibi put forward true0 In thi the trial jucloe erred0 He has to look at the evidence in its entirety and consider, when the evidence is taken as a whole,- whether the prosecution had oroveci its case beyond reasonable doubt0 He could not arrive at a conclusion, first on the prosecution evidence alone and then test the defence evidence against it, and reject the defence because it would be incompatible with the prosecution evidence0 Such an approach vitiates the trial and is highlX prejudicial to an accused Os it would not he a fair trial 0 The second point seems to be that the trial judge had placed op the defence the burden to prove that the alibi was reasonably true0 The normal standard is whether an alibi could create a doubt in the mind of the court, or could reasonably be true, not is reasonably true a less °nerous task0 AA 4. '1 —6 - In our view, the conviction cannot he supported 0 We allow the appeal, quash the conviction, set aside the sentence of death imposed, and order that the appellant he freed forthwith unless otherjeiIawfull.jr fleld. DiTED Eit MWNZe thi' I 24th day of November, 1984. F- \ y - -, --'• -' - 2- / / ,-- ; _- /'• F. L. NYALALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL - - - R. H. KISANGA - .- - -, -JUSTICE OF APPEAL I áetify that.:this,.isa true cppy of the original. /17 ( B. P. MOSHI SENIOR DEPUTY REGISTRAR