19840427 TZCA Dar es Salaam

. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAMt f;!OSTAFA, J.A., ·MAKAME., J.A. AND KISANGA, J,•A•) CRIMINAL APPE"AL.:.NO. 16 OF 1982 .\.,... .';.- BETWEEN AMIRI MOHAMED. • • . .. . . . APPELLANT : _AND THE REPUBLIC. • • • • . • • • RESPONDENT (Appeal. from the conviction of t,he· High· Com;t- of Tanzar:iia· ~t, K_or.o<t«e (Sf.sya, J. ) da·teti 'the ~'!'ti;\ d~_y, of Nt>yemb~r, 1901 ···· · in Criminal Sessions Case No. 3 of 1980 -----·---------- ' . JUDGMEN;I' OF THE -COURT KISANGA, J.b.•!, The :ap'pell.artt Amid Mu,1am_ed was convicted of murder and sentenced to death by the High Court 5 i tting-.,·,a1,: ~orogweo He· ·, ..,>i ~ . is now appealing. ' \·. . . . . \ The co_nviction was base~ entirely on circurnstancial evidence. , The most important ... piece of_. s~ch eyidence: wa~:-the dying declara-t;:fc;,n which the deceased .made, repeated to a number qf>_wi tnesses, and • I • ':. ~- • ' in . ; which . . . he . n'13med,. . th~• . appe.11 . . 9 nt as his assailant. ; l':k. M. Ismail ~ who appeared,peforE: us,,arg_1Jed on~y one grouti-d. of._appeal,. nam~ly, that the convd.ctj.on was _bad bec·ause there was insufficient -,.- corroboratioz, o:f the deceased•~ ldying declarat.l::on. There was evidence thpt the incident ~appen d.on a dark _nigQt. r1r.-Ismail 7 contended that . th;s ... was a factor which did .not. f~vour correct id.e_ntificat~on oi 'the ·appellant.. Co.'l,lnsei _further -referreq to .. the dying. decl~ration -. (Exhibit . P·. 2) which. : .. was ,-recorded "\ •' from the .cl.~ceased ,bY Detective Corp9ral Isaac (PoWo.3). In that declaration .. .. the decease_d. had . stated, . . inter . alia, that.the assault on him ~y .the appeilant was wi tness~d. hy onE! Raj abµ ,Sele_mani. The said Rajabu S~1emani, -:however, did- not. give evid:!nceo . Counsel went sti-11 further. and. «;irgued that there was Jinco}'.l~;istensy b,etween this declaration and .. the -~vidence of Jµma Yusufu (P.W,.4) who testified that he saw .one Munga.in tt:ie company of the deceased 9nly a short while . b.oth before and after the dee.eased: was assaulted. Tne said - 2 .- idence becau.se afte.r the incident he became Munga did not give ev 0 · · ·. id bf the trial commencedG ·· t Hy disturbed and eventually d e ~na e ore :' . . .. 811d The fearned trial judge dealt wi,.th this a~pect of ,;the evidence 'c.ame. to. the conclusion' that. the S.!l.~-~ Raj~bu S~l.emani mentioned. irf :~te ~yS.ng '~eclaratio,,n ~by the dec~a~ed ,nd _the .s~id Mun.ga men:tio~~:d .• Juma Yusu·f~:' {p.w~:4) were one and the same ~er~~~· 0 Mr. Ismail. :·26mpla'~ned that th~r~ wa'~ · n~°t~hing to support· or ),u-~t\fY such '~~-1hdi'~~- by· ttie _t;ric.ii coW::.t. Hl~ ;iew was th~-t Rc1jab·u· ¥1d Munga ~e~' or might v~ry well have been two diffep~nt pe_rsc.,ns,., and that the de.ceased might v,er:i well have· mistaken Munga for Ra.jabuo In those circ:::llmst~nc~~, _.-~ounsei argued, the deceased could equ~lly have mistaken ·the 'ap:p~ll~nt for· someone else. ·,· . ,. ~ . •. ~- .~ ,, We have caref,1:1lly ~qnsi~er 7d the ar9uments put,;.:forwclrd by -! : : .- .:· the le.a;:.ne}:i counsel· for, the ~ppellant, put we thin!c that the points ,,..... ' raised are ~ot sufficient ,to warrant our interference ~th the app~llan,t' s convic'.t:ion. The decP.ased made th~ 4y1_rig d~_slc:1rat_io~ at ~ 'tiie .whe~ .he· ~~s t~ his .senses and fully -~ler~.;· ·-,~~-~~- was ~vidence tha:'i: .- before the i~c-ident h~ppened .tha.t nighf/th·e· appellant - . . . called . :- . :· ,· ' ' 1 a;t' ~he ,h.otel of Jum:a Yusufu (P~W.4) and ;pe,cifii~aliy, asked for_ t!)e d,ecea~ed :d~ly to be tol~ tha.t the deceased ..h~d just lef~. .Whe.re.upqn the· ~ppeli~rtt went aw~:/ taking' the· ~~~e· di~~cti.9n c!S did the geceased, and only _ab~:ut si~ minut~s later the dec~~~~~-·,w~~ ~tt~cked. As the appellant went away he had· .in _his posse 9 sion .a bush knife, arid the injur,ies found ·on the ?:ece~~ed were inflicted • • .. • ~- ' '-.. ·: f ,_.' with a sharp pointed. instrument. That is ~ot all. The att~.~k t6~k ·place only ab~~t iifty .paces f~_?m the appellant• s ho~~-e; b~t the appellant never ~am~. out in answer to .the ·a'i,;.'rm being 'raised. Although a train~~ mil,ii:,i;:iman, he loc~ed himself in his ',house and remained there knowi,-ig f~lly well that a I:'ersori had been- injured. Indeed even when the . po-lice . { arrived ' and 6rd~ied.hirri to open the door of his house he refused; 6ril~ his wife did so in compliance -~i th. ·a \;i'mi\ar order to. her by 'th~ ~~li~e. ·· 5 ~ch conduct can hardly be sai4 to be consistent with the· appellant's innoncence. We ar.e . satisfieq that .the lP.arned Judge properly directed hi)lls_elf in law a~d .. on the ~vid,ence before him. In our v.iew ·· cr~dible · · the~e were ·.· L and cogent pieces of circumstaritial evidence. such as we have just outlineq briefly which supplied. sufficient coi-roboration to• the dying d ec 1 ara t·~on o f th e deceased. . ' ., 3 - In the result ·we see no reason to disturb tha appellant ~s ,, CO:P,VictJon, and accordingly we dismiss· the appeal. DATFD at DAR FS SALAAM· this 27th day of April, 19~4. ~. . A. MUSTAFA JUSTICE' OF APPFAL L. M. MA Kl\MF JUSTICF OF. APPFA L R. H.. KISANGA JUSTICF OF..APPFAL a true o.Q.gy of the original. ,>:_...-· ~\ ; I ,,-~. . "\·')., _...-/:··:> ( -- C7':;~{.,~ t:. •" •·•· -·=c~~~-,:-·r ~--•--·-• ·. fu.P. MoshU· SENIOR DEPUTY RFGISTRAR \_!!. -. ··::- .. •'.