19840720 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAi"\ ES SALAAM (CORAM: Nyalal.i, CoJ., . Mustafa, _J.A. and Ki.sanga 2 . J A 0 0 CRIMINAL APPEAL NO. 46 OF 1982 BETWEEN PiYUZA SHUMBI @ SAIDI I"lALINGo· • • 0 ,. • . . APPELLANT AND THE REP UBL IC O o C • o O • RESPONDENT (Appeal from the judgment of the High Court of Tanzan~a at Singida) (Maina, J.) · dated the 23rd day of August, 1982 JUDGMENT OF THE COURT KIS/\.NGA, J.A.: This ·1s an appeal against c.onviction of murder and · the sent1=nce of death passed on the appellant by the High Court sitting at Singida. '.Fhe prosecution alleged that on 23rd Jun,e,. 1979, the deceased, a young boy aged about thirteen years, borr.owed a _bicycle from one Omari Saidi (P. W. 2) and rode it from Ishenga V~llage towards another village called 'Nduguti. · The deceased never reached Nduguti village~ His dead body was found lying somewhere on the way between the,' two villages, and the prosecution alleged that he was murdered by the appellant and two other persons who .escaped aI;'rest- The prosecution case wa:s based on the evidence of a single witness one Pyuza Mpanda (P.W.6) who claime.d to have eye- ' ' witnessed the incident. The witness testified .that on 23rd June, 197.9; while he was .guarding his c.i;-ops against d~structJve animals, .., '. he ) :-:,3.w tL(~ appellant and· :two ot,h~r ·•· d ./2 ,. .· 2 \ persons assaulting a boy wno was holding a bicycle. .It was a very violent assault and i t happened at about So0O p.om.. Two or three days later the remains. of a human being were di.scovered some thirty paces from the spo:t where P.W.6 witriess_ed tne ;assault. Also recovered from around the sam~ place were a red shirt which was said to belong to the dec:eased and a bicycle which was claimed to be that one which the deceased had borrowed from P.W. 2 on 23rd June, 1979. The prosecution therefore relied on this evidence and claimed that the appellant and his two colleagues who could not be arrested murdered the deceased. The appellant in a very brief stcitement of defence in effect denied the charge, allegi_ng at the same time that the prosecution witnesses told lie_s and tha.t he had .,,. previously quarrelled with one of them. The learned trial judge accepted the evidence of P.W.6 whom he found to be a witness of truth and accordingly convict~d .the appellant. Mr. Ngasala who appeared before us argued the appeal on two .main grounds, namely,,' that the I, cause of death was not known, and that the credibility of P.W.6 on whom the trial judge relied so heav.ily to convict the appellant was in g,reat doubto The trial judge found that the deceai:;ed died from the assaults inflich:d on him jointly by the appellant and, two others. According to P.W.6 the appellant and his companions assaulted the deceased using sticks. Sha1ua Pyuza (P.W.S) who had spotted .the dead body some time before the discovery of the remains, testified that there was a cut w,ound on the neck which severed the throat. .,.. l The learned trial judge found that it was the appellant; and his ' compc;inions who inflicted the said cut wound with a c-lear ! 3 intention to kill or cause grievous harm to the deceasedo But it appears that there is no link between the nature of the assault al:).eqedly inflicted by the appellant and his companions and the cut 1Wound which, according to the J trial judge, was the cause of d~at'r). For: the assaults using sticks-, though they were said to be very vicious, were unlikely to cause a cut ,wound severing the throato Then there was the question of the credibility of P .. Wo6 who, as already stated, was relied upon so heavily by the court in convicting the appellant. The witness claimed to have seen the assault on 23rd June~ 1979 and the remains of t~e deceased were discovered in around the place of the alleged assault some two or three days later, but the witness dio. not disclose what he alleges he saw until he was interviewed by the police some time after 30th June, 1979. This is so because the matter was reported to the police for the first time on 30th June, 1979, and therefore the police cannot have interviewed P.W.6 before that date. Now the question is, if the appellant witn~ssed the incident as he cl2.ims why did he not disclose it to anyone after t:1e death was discovered on 27th or 28th June, 1979? Agai:-1 the evidence shows that the appellant was arrested on 6th June 7 1979, by the very police officer to whom the incident was reported for the first time on 30th June: 1979. No explanation was given, and none is apparent why the appellar:t WE1s not arrested so soon after PeW.6 was interviewed J:i~, the police~ If the appellant was so clearly identified as clairr;ed by P.W.6, why then should it take so long tcj arrest the app-ellant who was all -the time present in his village even,wben the police visitec -'I (_ 4 that V:iilage on 30th:, June, 1979, in connection with this.· matter? Not orily that. P.W.6 in his evidence stated that of the· three perspns who assaulted the deceased he could ident:i'ty thci appellant. only and not the rest. But according to Abel Lyariga (PoWo5), P.W.6 named the other two persons who ho"feverdisappeared arid could not be arrested. This finds support'.' in the evipence of the arresting police officer ' (Po·W.1) who te·stffied ' . that the others who had committed ~ the trH.trd.er witp tfre appellant escaped from the village. If P .. W.:s. arid PoW'..-i are to be believed, and_ there is nothing to suggest why' t:hey_shou.ld not be believed, it means that i;;.W.:.6 d~d merid.ori some people whom he did not actually identify as beiltg the assailants of the deceased. And if this is so; what guarantee is there that he actually identified fhe cippeiiarit as being the assailant of the deceased? We think that had the iearhed trial judge scrutinizAd closely , . the ev.idenc'e d:t p OW·;, 6; i-re would not have found him ~o be 1 :i:h~ch a credible wit~ss ori whom to base the conviction as ln all the c;:ircumstances of the case, we think , that . p~os~cuti?,n evidence as adduced was quite · insufftcient. to support the charge o i. 5 We would accordingl!y,. allow this appeal, ,.;quash -~e ·. .', .i•:. ~ • • I • C ~•i'••' convici;ion . 'and·k~"t ·asid~ the sentence, . ~i \ tli.i!;__;_t_~~F that the appellapt: be·:;;et free for~hwith·.unless oth~~ise lawfully hel~ iri custody. DATED at DAR ES SALAAM ·this ·20th' day of July, 1984. • •. II F. L. NYALALI ; / CHIEF JUSTICE I / A. MUSTAFA JUST::t·CE ·oF .APPEAL R. H. KISANGA J_lJS'rICE OF' A~PEAL ------ . r • . . ': .J.••c; Lv•. ,-~!":':MW~Af,~U'.-:-'S-:-AN--:-=-Y:--A---:-)--- ~ • ,.:. • l • I. ' ,.1 .. _,.,.) ~ •' ; I ·~~-•f'-»~.....- - ...... REGISTRAR ; ,'"Jl~,~~:-1~:~~ 4tl. . :,f ,\'.~: . ~, ...,t}Ml.. ;p--..~"'li:iJ(ll["4""~~-~,-· .. . . . ,~ .... ·~t '