19840720 TZCA Dar es Salaam1

* IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: Nyalali,CeJe, Mustafa, J.A.and Kisanga J.A. CRIMINAL APPEALN00 450F 1982 BETWEEN PYUZA SHUMBI © SAIDI NALINGO • APPELLANT A N D THE REPUBLIC . . . . , •. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Singida) (Mama,. J.) dated the 23rd day of August, 1982 JUDGMENT OF THE COURT KISANGA, J.A.: - This is an appeal against conviction of murder and the sentence of death passed on the appellant by the High Court sitting at Slngida. . The prosecution alleged that on 23rd June, 1979, the deceased, a young boy aged about thirteen years, borrowed a bicycle from one Omari Saidi (P.W.2) and rode it from Ishenga Village 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 apeilant. and two other persons who escaped arrest. The prosecution case was based on the evidence of a single witness one.Pyuza Mpanda (P,W,6) who claimed to have eye- witnessed the incident. The witness testified that on 23rd June, 1979, while he was guarding his crops against destructive anLmais, he .aw the appellant and two other -2-- persons assau]ting a boy who was holding a bicycle. It was a very violent assault and, it happened at about 5.00 p.m. Two or three days later the remains of a human being were discovered some thirty paces from the spot where P.W.6 witnessed' the ,;assault. Also recovered from around the same place were a red shirt which was 'said to belong to the deceased 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 o.n 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 statement of defence in effect denied the charge, alleging' at the same time that the prosecution witnesses told lies and that 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 2 and accordingly convicted the appellant. Mr., Ngasala who appeared before us argued the appeal on two mairi'grounds,- namely, that the cause of death was not known, and that 'the credibility of P.W.6 on whom the trial judge relied so heavily to convict the appellant was in . J great doubt.: The trial judge, found that the deceased died from theasaults inflicted on him jointly by the appellant and two other. According to P.W.6 the appellant and his - companions assaulted the deceased using sticks. Shalua Pyuza (P.W.5) who had spotted the dead body some time bef'ore the discovery of the remains, testified that there was a cut wound on the neck. which severed the throat. The learned ' trial judge' found that it'was the appellant and his companions who inflicted the said cut wound with a clear 0 0 0 /3 PC 3 intention to kill or cause grievous harm to .the deceased. But it appears that there is no link between the nature of the assault allegedly inflicted by the appellant and his companions and the cut rwounrl, which, according to the tr.ial judge, was the cause of deat1 For., the assaults using: sticks, though they were said to be very vic-ious, were unlikely to cause a cut twound severing the threat. Then there was the question ofthe credibility of PW06 who,: as already stated, was relied upon so heavily by: the court in convicting the appellant The witness claimed1 to haVe seen the assault on 23rd Juie, 1979 and the remain of the deceasd were discovered in around the place of the alleged assult some two or -three days later, but the wit-ness did 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 Jtme, 1979, and therefore the police cannot have interviewed. P.W.6 before that date0 Now the question is, if the appellant witnessed the incident as he claims why did he not disClose it to anyone after the death was discovered on 27th or 28th June, 1979? Ag'aii the evidence shows that the appellant Was arrested on 6th June, 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 appellant ws not arrested so soon-. after P.W.G was interviewed by the police. If the appellant was so clearly identified as claimec by P.rJ.6, why then should / it take so long tb arrest.the appellant who was all the time present in his village even 'i- en the police v.si•ted 0 4. - 4.- 0 that village on 30th June, 1979, in connection with this rfiat€er_? Not only. that. P.W06 in his evidence stated that. j of the threepersons who assaulted the deceased he could identi•fy..the appellant only:and not the rest. But according to Abel Lyangà (P.W,5),,.P.W.6 named'the other two persons . who however disappeared and could not be arrested. This finds support. 4n,,.the evidence of.. the arresting police officer (P.W,1) who testified that the others who had committed the murder with.the appellant escaped from the village. If P.W05 and P.W.i are to be 'believed, and thee'is nothing to suggest why they should not be b61ieved,'it'means tht P.W,6 did metitlon some people whornhe did not actually idetiti.fy as being 'the as'sailants of the deceased. And if this is •so, what guaraitee is there that he actually identIfied the appellant as being the assailant of the deceased? We think that had the lear.hed trial judge scrutinized closely the evidetie of P0W.6, he would not have found him to be such :a credible withe-st on whom to base the conviction as he did0 In all the. ciççumstanes of the case, we think that prosecution eyidence as adduèd was quite insufficient to supp.Qr.t the charge. ... ./5 a ¼' - - We would a&ordxngl'y allow this appeal, quash the conicti6n andetaside the sentence, with; an order that the appellant be set free forthwith unless otherwise lawfully held ifl custody. DATED at DAA ES SALAAM this 20th day of July, 1984. ) • F. L. NYALALI / CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL R. H. KISANGA JUSTICE' OF AEPEAL ",. I certify that this is a:truep oftheora.ginal ('J. L. •MWALUSANYA .) GISTRAR