19841015 TZCA Dar es Salaam

IN THE- COURT OF APPEAL-OF TANZANIA .AT TANOA (CORAM: MUSTAFA, J.A., MAKAME 1 J.A. & KISANGA, J.A. ) CRIMINAL APPEAL NO. 15 OF 1982 BETWEEN YUSUFU SAID • • • • • • • • • • • • • • • • • • • • • APPELLANT AND THE REPUBLIC • • • • • ' ..• • • • • • • • • • • • RESPONDENT ( Appeal f::-om the conviotion of the . High Cou.:.. t of Tanzania at Tanga) 1 ( Sisya, J) dated the 19th day of February, 1982 in .£!:i ~!inal Sessions Case No. 48 of 1972 :!!!DGMENT OF THE COURT MUSTAFA, J. A.: The appellant was charged-with and convicted of murder. It was alleged that. he was one of three persons who hai broken into the shop and house of one Salimu Masoud at Kiuaoni Village, Korogwe District, on or about )0th March, 1977, .during which Salim Masoud was shoi and killed in the course vf ~ bort,lary. Two witnesses,- P.W.l and P.w.4, the sons of the deceased, te-stified that they could and did identify the appellant as one ) of the three bu?'glars. P.-W.l stated that when the three persons entered the shop, one of them had a shut gun, while anoth~r wae armed with a stick or club, The people in the shop, including the deceased, were ordered to put up their hands and to lie down on the floor. The de,ceased did· not obey the order to 1 ie d.own ~nd was thereupon shot and killed. P.W.l stated that one person was standing near the door guarding the occupants of the shop while e the others went insi~e to rob, and the appellant was the one •.••. /2 :;., 2 standing verj nea~ P.~,1 whari P~~~l was lying down~ There was a press~!'~ lamp 1>Ultf1ih.g in the shop at the material time and he could see the appellant' cle:iarly. icc()rding to P. w.1, he had pienty of opport'i.initY. and time to rec:ft;gase the features and ">Ii ild of the .~·~P~llan~-., ,.., . --~, ,. ., , · ·, ~ ,, ;, . r·· . ·., ,,...,, Simi~arly; )~w.4,. whd .;. h~d.' ;·iso ~iiid).otm'. as ~ke;~d, )~d' · · · · .'( · · . I. .,.. ·. --~- 1 ~ . ·· , ample opportuni'tles of r~cogriis'irig th~ aPi>eiiant who was stari~ing . I guard over the·ma He ~l sd testified that he could~rii JiJ f~~.oghiee ..... :, the appellant. After the burglary, the attackers we~t awai! A day or two later, during some ceremony concerning the death· of the deceased, P.W.l espied.the appellant in front of.their shop and house near a bus Etand. He thereupon informed some of the assembled mourners, and the ·appellant was apprehended. Another witness, P.W.2, testified th~t he was well-aoquainted with the appellant. Qn the day in which the uurglary took plaoe, he had seen the appellant near the. llurgled shop. Th.at evening, some minutes before he heard a gun shot which· was fired during the burglary, he had passed the appellant stand~ng in front of the shop of the deceased. He was positive he had seen the appellant short].y lJefore he heard the gun shot. The appellant put ur a defence of alibi, and maintained that at the material time he was not in the vicinity of the daceesad's shop but was at home in another village. The trial ju<lge, and the assessors as well, believed the evidence of P. w. ~.' P. W. 4 and P. w. 2. Mr. !4ramba.- for the appellant, has attacked the evidence of P.W.l and P.W.2. H.e submitted that they .(?~ld ..have been mistaken .in t.estifying that they had properly identified the appellant as· one of the a.tt.ackere on the material night. He mentioned a number of so-called contradictions and' ineonsistenciea. . ... . /3 . .,._ 3 We give a couple o:f examples of such alleged contradict ions and inc6nsistencies. Mr. Mramba submitted that P.W.l, in his evidence, had stated tha"; the man who leaned against the door was armed with a panga and club, while P. w. 4. -had stated that the man who stood at the door 1tlso had a stick. Another so called inconsistenc; is that P.W.l had stated, "they shouted 'hands up', whereas P.w.4 had stated that only the man with the gun sh0uted 'hands·up"'. To our mind these so-called inconsistencies are immaterial, and in fact would indicate that the·witnesses were attempting to state what they could actually remember, and would be a, sign that they were tall ing tne truth. The trial judge analysed the evidence carefully, and was satisfied that P.W.l, P.W.4 and P.W.2 were witnesses of truth, and that P.W~l and P.w.4 were not mistaken in their identification of the appellant. He al so dealt with the evidence of the appellant' regarding his alibi, ana. pointed out a number of what Mr. Mramba has conceded were 'S.isturbing"contradictions between the witnesses for the appellant. In vt~w of the evidence of P.W.2 which was accepted as true by the trial judge, the defence of alibi did not raise any dou~t in the trial judge's mind, and he rejected it. We ourselves are satisfied that the conviction was sound • . . . -~ \ . \ .1 ·•. R. H. KIS.ANGA JUSTICE OF 4PPEAL .·, 1 -~~rtify that .th.is is a true copy of the o ( B. P. MOSH S~IOR DEPO Y