19840427 TZCA Dar es Salaam1

J•M' IN THE COURT OF APPEAL OF TANZANIA AT.DARES SALAAM (CORAM MUSTAFiJA. 9.: :,:MAKAME, J. A. AND KISANGA, J.J,) CRIMINAL APPEAL NO. 16 OF 1982 BETWEEN AMIRI MOHAMED. . . . . . . APPELLANT. AND THE REPUBLIC. . .. . . . . RESPONDENT. (Appee] from the conviction of the. HighCourt. of Tanzania at Korogwe (Sisya, J.) dated the 11th day of November, .1981 in- I Criminal .::ei.P$ Case N. 3 of .1980 -------------- S . JUDGMEN OF THE COURT KISAI4GA ) The apellanAi 1 Mazne...was conv:ictedof murder and. sntenced to death by the HIgh Cburt' Sitting.t Korogte 0 He 16 now appealLg. ' The conviction wa based entirely. on .ciçumsacial evidence. The' most imporEanEpiecé of such evidence was the dying declaration. which the deea's'dmade,'repeáted toa..number.of witnesses, and in which he nedth'eappellant as his:assailant.. Mr. H. 'small. who appeared ibef6ke us argued only one ground of appeal, namely, that the convictloh was bad because there waS insufficient coroboratiozj of the deceased" S !dying declaration. There was evidepce that the 1nciden happeied on, a dark: night. Mr. 'small contended that this was a factor whIch: did not favour correct identIfication of the appellant. Counsel further referred to the dying decláratlón (Exhibit P.2) which was recorded fiÔn the deceased by DetectiVe Corporal Isaac (P,3). In that declaration the deceased had stated, Inter alia, that the assault on him by the appellant was witnessed by one Rajabu Selemani. The said Rajbu Selemj however, did not give evid9nce. Counsel went still fu±ther and arqued that there 'was Inconsistensy between this declaration ád the ev1dece of Junia Yusufu (P.W.4) who testified that he saw one Muig in the company of the deceased only a shqrt while both before and after the deceased was assaulted. The said .. . . . . ./2 -2- eC tfle incident he becawe Mung did not gJ.%e evide,ce baUa mentally disturbed and eventually died before the trial commenced. The learned trial judge dealt with this aspect of the evidence afld said Rajabu e].emani mentioned ifl came to the conc]tisiofl that the menoied t'e dying declaration by the deceased and the said Munga 1 Jurfl' YUsufu (P.W.4) were one and the sme person. Fir. Ismail ornplained that there was nothing to support or justify such finding, by the trial: court. His view. was,that Rajabu and Munga é' or migit very well have been two diffeent.perSOflS, and that the deceased might v,ery well have mistaken Munga for Rajabue In those circumstances, counsel argued, the deceased could equally have ;,'rhi'stakèn'the'ppellaflt for someone else. We have carefully considered the arguments ,putforward by • the.1earne,d counsel for the appellant, ut we, think that the points raised are not sufficient to warrant our interference with the appellant's conviction. The deceased made the dying declaration at •:: time 'thn he' was. in his senses and fully alert. There was evidence 'tht'béoé the' incidet happenedthat night, the apeilant called t the hotel of Juma Yusufu (P.W.4) and specifically askcd for the deceased ónly to be told that the deceased had just left. Whereupon the appellant went away taking the same direction as did the deceased, and ;bnly:áldüt six minutes later the decased was attacked. the apellant went away he had in his possession a bush knife, and the injuries found on the deceased were inflicted with a sharp pointed instrument. That is not all. The attack took place only about 'fifty paces from the' appellant's house, but the appellant never came out in answer to the alarm being raised. Although a trained militiaman,':h locked himself in his house and remained there knowing fully well that a perso';ha'd been' injured. Indeed even when the police arrived and ordered him to open the door of his house he refused; only his wife did so in compliance with a similar order to her bythe'police'. Such conduct can hardly be said to be consistent 0 with the appellant's innoncence, . We are satisfied that the learned judge properly directed himself in law and on the evidence before him. In:our view credible th ere were L and cogent pieces, of circumstantial evidence such as we have just outlined briefly which supplied sufficient corroboration to the dying declaration of •the:deceased. . . . . . ./3. - q In the reeult we see no reason to distux'b tho appcllant!s conviction, and accordingly e dismiss the appeal. DTFD at DAR FS SLAM:.. this 27th day of april, 1984. A. MUSTAFA 3 A. JIJST.ICF OF APPFAL / .. £. •. - \'\ L. M NAKMF * .. OF APPFAL R. H. KISANGA JUSTICE OFAPPEAL (4'j r ta ts\is a true c the orlg3.nal. H ' (T BP Moshj) SENIQR D?UTY EGISTRAR