Criminal Appeal No

ITT THE OCTjUT OF APPEAL OF TAIT2AKIA AT ARUSHA (CCRAI-I; rrj >TA?A. J.A.; LIAEAIiE, J .A. And IQSAITGA, J.A.) criijiitai appeal ito. 20 of 1934 BETWEEN SAIJWELI :'A1.131................ APPElLAI'iT AND THE REPUBLIC................ RESPOITDErTT (Appeal fro..\ the conviction of the High Court of Tanzania at Hos’ ai) (J. C. L 1Souza, J.) darted the 30th day of April5 1984 in Criminal Sessions Case No. 18 of 1984 JUDGEIJENT OF THE COURT IIUSTAFA, J.A.: Six persons wire charged in the High Court for the murder of the deceased Ivlundanduai Hamisi. Five of the accused persons were acquittod of the charge, and the appellant Sajnwel Hamisi was convicted as charged and he is appealing from his conviction of murder. There was ono eye-witness to the offence. P.W.2 Paulo alleged that on the matex-ial night he heard an alarm emanating from the house of the deceased. He went towards it and stayed in a bush about 35 feet from the house. He saw a small oil lamp, c. icibatali, lit by one of the co-accused, and by its light he saw all the six accused persons attacking the deceased. He saw the appellant cut off the right arm of the deceased and saw another person hit the mouth of the deceased witn a ..iammer. The attackers were demanding money from the deceased. The deceased was a. brother of the appellant. P..7.2 was there for sometime and when be left he saw the deceased had been killed. P.i.7.2 reported the matter the following day to the Village Chairman Elis-s. P."7.2 stated lie w^s advised to /Eoaai report to.the Pol '00 . He went to the/_Police Station ajad was sent to Sanya Juu Police Station. Sanya Police Station proraised /ku? did not turn up and then P.W.2 went to KIA Police Station which sent a policeman P.W.6 Sulu to investigate. /2 • .......................... - 2 - The deceased body was eventually discovered in a trench about 11 feet from the deceased's house. The body was decomoosed, one arm was missing and tv/o front teeth knocked - .out off. The doctor carried £a post-mortem examination and stated that the cause of death was due to an assault. The skull, prosunirbl-y the head,was severed from the body. P.",7.2 was positive he identified all the six accuse#, persons, as they were all fellow villagers, however it appeared that P.Y/.2 made his police statement on 11*3*8#, whereas the deceased body was discovered on 14.2.80. The Village Chairman Elias was not called to corroborate P.W.2's allegation that he reported the matter to.Elias the day following the incident, nor was one Simbo, with whom P.W.2 alleged he went to report to Moshi Police Station called to corroborate P.W.2 on that point. Mr l Musei contended that that one good reason to disbelieve P<W.2 would be the delay which * . occured before P*77.2 reported the incident to the authorities. Mr. Uusei contended that P.W.2 must have lied when he said that he had reported to Chairman Elias and that he then, as directed, reported to the Moshi Police Station, as neither Slias nor Simbo had come forward to confirm those allegations. It is quite true that the Republic ought to have called these tv/o witnesses, or offered them for cross—examination to the defence. However, after a consideration of all the circumstances, we do not think that the failure to call Elias and Simbo in any serioue way impairs the evidence of P.Y/.2 as to wha.t he did after having witnessed the incident. V/e believe P.V7.2 did hear the alarm and went to enquire and saw what happened that material night. P.T/.3j another neighbour of P.Y/.2, also heard alarms emanating from the deceased's house that same night. The trial judge was fully aware of the danger of convicting on the evidence of a sole witness, although he was satisfied that P.V/.2 was truthful and not mistaken. /3 - 3 - The judge was prepared to convict only if r .7.2 was corroborated. There was no corroboration of P .7/,.2 as against the other 5 co-accused, and they were acquitted. In the case of the appellant, the judge found corroboration in the appellant's own statement. The r-reliant, in an unsworn statement, adopted an extra judicial statement had made 'to a justice of the peace. In that statement the appellant said that the deceased was killed in his presence by certain people whom he named, on the material night. He further stated that he was threatened by one of those who had killed to remain silent and was advised to leave which he did and he stayed away for 6 months. The ^udge found that was corroboration of F.W.2's k evidence as far as the appellant was concerned and convicted the appellant accordingly. ^V/e have duly considered the ai’guoients put forward by Mr. Musei on behalf of the appellant. We are satisfied that the judge was justified in convicting the appellant on the evidence of the charge of murder. We dismiss the appeal. DAT2D at ARUSHA this 22nd day of July, 1985. A. MUSTAFA JUSTICE OF APxEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original /fl A .. - K Y L H D O ) RlkrXoTEAH