19840508 TZCA Mwanza 1

jj) .4 IN THE COURT OF AFPEAJ OF TANZANIA AT MJANZA •(CORAMI NYALALI, .C.J., MAKAME, J.A. AND KISANGA, J.A.) CIMINAL APPEAL NO.40 OF1983 BE'I%JEEN SALUM s/o OMARI., . . . . . APPELLANT AND THEREPUBLIC O • 0O• • • . ORESPONDENT (Appeal ' from the conviction of The High Court of Tanzania at Shinyanga) (B. D. Chipeta, J.,) dated the 4th day of August, 1983, in Criminal Sessions. Case No0 49 of 1979 c. S. JUDGMENT OF TBE COURT MAKAME, J0A.: The appellant, SALUM OMARI, was sentenced to death by the High Court Sitting at Tabora, (Chipeta, J.), consequent upon his conviction for Murder. He is now appealing against that decision and he is represented before us by Mr. Rutagatina, learned Counsel from the Tainia Legal Corporation0 The respondent Republic is represented by Mr. Ndolezi, learned State Attorney.. The evidence relied on by the trial court to convict the appellant was purely circumstantial. The person alleged to have been killed by 'the appellant was a woman called NZILE MAGANGA, the appellant's divorcee. Skeletal remains alleged to be those of Nzile were found in the bush some four hundred yards from where the Prosecution alleged the deceased was last seen alive, l&ked in a fight with her former husband, the appellant. The discovery of the remains was said to have been made about three months after the alleged encounter. The appellant totally denied the allegation that he killed Nziie and he 'put up an alibi, asserting that at the material time he was a long way away, visiting a sick friend called .12. -2-- LUGENZI SWEHELE at Bukene in Nzega District, The various circumstances which persuaded the learned trial 4 judge to find that Nzile was dead and that she had been murdered by the appellant have, as their pivot, the testimony of P0Wo1 IVIHOJA MASELE. This witness told the court of trial that one afternoon in July, 1978, at about 1 p.m., as she and Nzile were walking home from a paddy field the appellant, a man she had known for about seven months, and whom she recognized as being, Nzile's husband, came running from behind them. He was half - naked, wearing only a pair of trousers, and carrying a bag ...ontaining a shirt, and a pa ga,. He immediately hit Nzile with he flat side of the pangà and knocked her to the ground. When the appellant was sitting on top of Nzile P.W.1 decided to go to the latter's aid. She picked up a stick and made to hit the appellant with it, but the appellant thwarted this by wielding the panga at her and'threatened to slash her with it. P.W.1'5 courage failed her, so she ran home raising the alarm. Home was about one mile away and by the time she and some villagers reached upon the scene, about an hótir later, neither the appellant, nor Nzile, was there. Nzile'sclothes were, but not the'appellant's bag, shirt, and panga. Nzile has not ben sighted alive, since. The crowd of villagers wh:ich converged upon the scene searched for both Nzile and the appellant but the search on that day,. and for a great number of days thereafter, proved futile. It was not until several weeks later, on 5th October, 1978 that some people, including P.W.2 KABADI NEKWA and P.W.3 NEKWA MIHAMBO, .. respectively Nzile's father and br.other, who were cortinuing with the search,came across the sorry remains of what doctor, P.W.6 BRUNO MANDE, confirmed to be those of a human being. There were 0 0 0 00 0 0 0/30 0 •0i,/ooe.00 pupu sTLI ui ;qnop,Aue esier ;ou pip qT. .:4q.ppTDop pu2 TqTIv aLiq H tnb IOU. 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E0Med o .5UTpmOD09 PU2 1, aaam 3)jfl flQ p2emdS pup 4aoLls a-TOM S004 @Llj, lalTzm ;O OSO4 emeM asaq4 qe44 • PT;sn2S 313M Aeq. pT2SIJaqqOZ7e PU2 m3qP.J 4Oq pup 19UT upis dn-pemppu2 SIT9U aqpq oo; y S53 3L{ ;o 3U0 0 S 3 IDSflW dn-pemp eq; mo;.d3x3 'euOb Peq qs3; aq4 TTe ATT20TIDeJd 153U0q OTq4 eq; Pup '2rIq; 3q U2çq eq; 'sq -cm euos 'njs 3e1dLuo 344 3J3M P3UTQW3m 24M' '.but3q U2wnq 94 o opunoap S4OID OU I At one stagE? the hearing had to be adjourned so as to afford the Defence opportunity to call the witness Lugenzi Swele,. evidently the man the appellant said he had been visiting. This was presumably to come and support the alibi. After interviewing Swehele, however, Miss Bayona, learned Defence Counsel, abandoned the idea because she said, the would—be witness would not be helpful. The Lady assessor who sat with the learned judge expressed the opinion that the offence of mUrder had been proved against the appellant. The learned judge analysed and considered the totalIty of the evidence, in a commendably balanced manner in our view, and was satisfied that the finqer of guilt iresistably pointed at, and reached, the appellant Mr. Rutagatina sought to fault the High Court decision on a nuthbet of grounds, which we paraphrase and summarize thus: There was not enough conclusive evidence on which to base the finding that Nzjle is infact dead and that the skeleton found in the bush was really that of Nzile. in any event, even if Nzile is infact dead, there is no proof that he was killed by the appellant who has put up a good alibi. Undue reliance was placed on P.W.1, an unreliable witness who had at best, unreliable opportunity to 'observe properly and identify the assailant in what must have been a very short time, in the thick bush and in frightening circumstances0 It was wrong to rely on motive for which there was no tenable evidence, considering that the appellant still loved his former wife and was intent upon resuming cohabitation with her. Even if P.W.1 told the truth, Mr. Rutagatina also submitted, there was no reason to think that the appellant would have wanted to snuff off Nziles life - he was merely tryIng to persuade her and it • 0 • /5 • is possible she might have left the scene and met her death elsehow. There was also the complaint that the learned trial judge erred in taking into account what was said to be opinion evidence of POW,2 and P4W03 as regards the instrument used to inflict the cut on the skull and also that it was improper to make reference to objects, like the paddy, clothes and panga 7 which were not produced in court as exhibits. On behalf of the Republic Mr. Ndolezi submitted that even though the evidence was clarly circumtatiial the High Court decision is supportable and sound, taking into account all the evidence .prOperl considered by the learned trial judge As we remarked earlier on, the testimony of PcW.1 is at the centre of things around whch the rest of the evidence must hang, if at all0 If the evidence of P,W,1 is discarded the rest, would collapse', in ou view. Mr. RutagatinF has pointed out to us what he thought were indications that: P.W. was unreliable. There was for example her claim thatshewent..back to the scene with the villagers while P.W02 said she did not, and the fact that she said the appellant's shirt was no longer there whereat there is evidence that the appellant's shirt was found at the scene. We have given careful thought to these matters and having done so, and taking into account the trial court's impression of P.J.1, we are satisfied that the encounter spoken about by P0W.1 was not imaginary: The appellnt did accost Nzile as alleged and, consdering the circumstances, we are satisfied that P,W.1 was correct ina.l the important details. It was broad day light, early in the afternoon, P0W.1 had known the appellant for some sevenmonths.previously, and had the courage and presence of mind to face the appellant and try to rescue her companion. ...,... ./6. r" : — 6 - -- - fln -t This could/have been for only a fleeting moment and P0W01 was, on the evidence, not so frightened as not to be able to see and recognize the appellant, and. be in a position later to rec.ount what had transpired at the scene0 We are satisfied that P0W01 did lead the crowd to the scene and, considering that there were very many people, we are not surprised that she did not notice the shirt, which was there0 Having accepted PW1's story, as the trial court did, we move on to Mr0 Rutagatina's suggestion that if the appellant was at the scene he was merely trying to persuade and w 1 n back Nzile, as he had done before0 "Persuade" would be grossly to understate what the appellant was engaged on0 You do not persuade a former wife by felling her down and sitting on top of her0 We cannot accept, either, that the appellant might have left Nzile safe ard so'.nd and she rued elsehow0 Not if we try to relate this, as we do, to the appellant's behaviour and the way he demonstrated his willingness and readiness to employ the panga against P0W01. Nzile could not have left the place well, and on her own accord,. considering her'evidently unceremonious exit, clad in nothing0 There is next the question as to whether the mortal remains were those of Nzile0 The learned judge carefully considered this and took into account the identification by P.W02 and P0W03 0 In effect he was satisfied with the identification even though he also said he would be hesitant to place reliance on that alone0 For our part we would say, on our weighing the evidence as this is a first appeal, we are prepared to put it more positively and say that 0W02 and his son correctly identified the skeleton as being that of .Nzile from the shape and alignmen of the toes, which description was the same as the trial judge's observation of P0W0 3': This 3keleton is.ound a mere quarter of a mile 00 0 .6 from where Nzile was last seen alive, three months later which is about the same period as the doctor puts the age of the skeleton0 The skull has a cut wound caused by a sharp instrument according to the doctor, even if we exclude the evidence of P0W02 and P,W,3 on this, and the appellant had been armed with a panga the readiness to use which he had clearly demonstrated0 We are satisfied the skeleton was that of Nzile. This panga cut on the skull and the vicinity in which the skeleton was found takes us next to the alleged connectiOn between the appellant and Nzile's proved death0 Apart from all the foregoing there is next the disappearance of the appellant and the appellant's alibi which cannot hold, and which we are satisfied relates to the time P.W01 see the appellant It is not without. sqnificance that at the eleventh hour the appellant dropped the idea of calling the one man intended to prop up his alibi0 Considering the circumstances revealed we do not think the production of the paddy etc0 in court would have made any difference0 Taking the totality of the evidence into consideration,, we are satisfied that the learned trial judge reached the correct decision that the appellant was the murderer of his former wife0 We accordingi 'snis €h&s appeal0 IV DATED' thjs8h day of May, 1984, F. L. NYALALI CHIEF JUSTICE V V. L. M. MAKAME JUSTICE OF APPEAL - V R,, H0KISANGA /4 JUSTICE OF APPEAL i chrtiy that thi 5s is. a true copy of the 9r±g&nal. ,) ( .V.S) SS I V / ( BP-;i1bSHI SENIOR DEPUTY REGISTRAR