19841015 TZCA Tanga

IN THE COURT. OF APPEAL OF TANZANIA 4 AT TANGA (CORAM; MUSTAFA, J.A., MAKAM, J.A. & KISANGA, J.A. CRIMINAL APPEAL NO. 15 OF 1962 BETWEEN YUSUFJSAID.....4................APPELI1ANT AND THE REPUBLIC...,. . . . ... •....... RESPONDENT U (Appeal from the conviction of the High Couit of Tanzania at Tanga) (Sisya, J) dated the 19th day of February, 1982 in Criinai, Sessions Case No. 48 of 1979 JUDGMENT OF THE COURT MUSTAFA, J..A.: The appe1lrrt was charged with and convicted of murder. It was alleged. that he ws one of three persons who hat broken into the shop and house of one Salimu Masoud at Kibaoni Village, Korogue District, on or about 30thMarch, 1977, during which Salim Masoud was shot and killed in the oouse uf a brla.ry. Two witnesses, P.W.1 and P.W.4, the eons of the deceased, testifIed that they could and did identify the appellant as One of the three burglars. P.L1 stated that when the three persons entered the shop, one of them had a shut gun, while another was 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 deoased did not obey the order to lie down and was thereupon shot and killed. P.W..l stated that one person Was standing near the door guarding the oôcupants of the shop While the others went inside to rob, and the appellant was the one - - standixLg very te.ar P I LI. when P.W,l was lying down. There was a pressure lamp b.uning in the shop at the material time and he could see the appellant clearly. Acc'rding to P.W.l, he had plenty of opportunity and time, to recoise the features and build of the appellant. Similarly, P.W.4, who had. also laid down as ordered, had ample opportunitjea of recognising the appellant who was standing guard oer them. He also testified that he could and did recogni.se the appellant. After the burglary, the attackers went away. 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 Eand. He thereupon informed some of the assembled mourners, and the appellant was apprehended. Another witness, P.W.2, testified that he was well—acquainted with the appellant. On the day in which the burglary took Place s be had seen the appellant near the burgled shop. That evening, some minutes before he heard a gun shot which was fired during the burglary, he had passed the appellant standing in front of the shop of the deceased. He was positive he had seen the appellant shortly before he heard the gun shot. The appellant put up .a def'ence of alibi, and maintained that at the material, time he was not in the vicinity of the deceased's shop but was at home in another village. The trial judge, and the assessors as well, believed the evidence of P.W.l, P.W.4 and P.W.2. Mr. Mramba r for the appellant, has attacked, the evidence of P.W,l and P.W. 2. He submitted that they co,ld have been mistaken in testifying that they had properly idenUfied theappellant as one of the attackers on the material nigjtt. He mentioned a number of so—called contradictions and i*coststencie. - s.0 .. 3 -3- We give a couple of examples of such alleged contradictions and inconsistencies. Mr. Mramba submitted that P.W.l, in his evidence1 had stated that the man who leaned against the door was armed with a panga and club, while P1W.4 had stated that the man, who stood at the door qlso 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 shouted 'hands up". To our mind these so–called inconsistencies are immaterial, and in fact would indicate that thewitnesses were attempting to state what they could a.tually remember, and would be a sign that they were telling the truth. The trial judge analysed the evidence carefully, and was satisfied that P.W.1,. PW.4 and P.W.2 were witnesses of truth, and that P.W.1 and P,W.4 were not mistaken in their identification of the appellant. He also dealt with the evidence of the appellant regarding his alibi, and pointed out a number of what Mr. Mramba has conceded were 'isturbing"contradictions between the witnesses for the appellant. In vjw of the evidence of. P.W,2 which was accepted as true by the trial judge, the defence of alibi did not raise any doubt in the trial judge-!.s mind., and he rejected it 0 We ourselves are satisfied that --thb, conviction was sound. Mr. Mwale for the Republic sipports the ojiviction. We dismiss the appeal. DATED at TANGA thi l5h day of Ooo$er, 1 984. MtJSTAFA —.TUST ICE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KI5ANGA JUSTICE OF APPEAL I certify that this is a true copy of the on ..... B. P. MOSH c'1tm